Cultural Heritage in Human Rights and Humanitarian...

From the SelectedWorks of Ana Filipa Vrdoljak

January 2009

Cultural Heritage in Human Rights andHumanitarian Law

ContactAuthor

Start Your OwnSelectedWorks

Notify Meof New Work

Available at: http://works.bepress.com/ana_filipa_vrdoljak/15

http://works.bepress.com

http://works.bepress.com

http://works.bepress.com/ana_filipa_vrdoljak

http://works.bepress.com/ana_filipa_vrdoljak/contact.html

http://works.bepress.com/cgi/sw_user_setup.cgi

http://works.bepress.com/ana_filipa_vrdoljak

http://works.bepress.com/ana_filipa_vrdoljak/15

Cultural Heritage in Human Rights and Humanitarian Law

Ana Filipa Vrdoljak

The exceptionalism originally afforded cultural heritage in international

humanitarian law arose from its perceived significance to humanity through its

advancement of the arts and sciences, and knowledge. By the mid-twentieth

century, and the rise of human rights in international law, this rationale was

recalibrated to emphasise its importance to the enjoyment of human rights and

promotion of cultural diversity. This shift in rationale manifested itself most

clearly in the articulation and prosecution of war crimes, crimes against

humanity and genocide. Cultural heritage and its protection was no longer

based on its exclusivity but its intrinsic importance to people and individuals, to

their identity and their enjoyment of their human rights.

In examining the protection of cultural heritage in this chapter, I focus on this

shifting rationale to highlight the ever-present interplay and interdependence

between international humanitarian law and human rights law. First, I outline

the exceptional treatment of cultural heritage in general international

humanitarian law instruments, and its overlap with international human rights

law. Then, I detail how this protection has been built upon by the specialist

regime for the protection of cultural heritage during armed conflict and

belligerent occupation developed under the auspices of UNESCO. Next, I

analyse international criminal law jurisprudence from the International

Military Tribunal, Nuremberg to the International Criminal Court for the

former Yugoslavia, to show how efforts to prosecute violations of the laws and

customs of war relating to cultural heritage have been intrinsic to the

articulation and prosecution of crimes against humanity and genocide. Finally,

I consider the evolving and potential future normative trends in this field in the

light of recent developments.

A. F. Vrdoljak, Cultural Heritage in Human Rights and Humanitarian Law

2

Cultural Heritage in Human Rights and Humanitarian Law

Ana Filipa Vrdoljak∗∗∗∗

1. Introduction

The public outcry in response to the looting of the Baghdad Museum

following the 2003 invasion of Iraq and the bombardment of the historic city of

Dubrovnik in 1991 are contemporary examples of international condemnation of

attacks upon cultural heritage during armed conflict and belligerent occupation. This

international concern has manifested itself since the earliest codification of the laws of

war which provided cultural heritage with a protection regime distinct from other

civilian property, and stated categorically that violations shall be subject to legal

sanctions. These general international humanitarian law instruments are augmented by

a specialist multilateral framework which governs the protection of the cultural

heritage in preparation for armed conflict, during armed conflict and belligerent

occupation. International humanitarian law was the first specialist field within

international law to afford cultural heritage such exceptionalism. The rationale

underlining this protection – its importance to all humanity – has evolved and spread

beyond armed conflict and belligerent occupation.

The exceptionalism originally afforded cultural heritage in international

humanitarian law arose from its perceived significance to humanity through its

advancement of the arts and sciences, and knowledge. By the mid-twentieth century,

and the rise of human rights in international law, this rationale was recalibrated to

emphasise its importance to the enjoyment of human rights and promotion of cultural

diversity. This shift in rationale manifested itself most clearly in the articulation and

prosecution of war crimes, crimes against humanity and genocide. Cultural heritage

and its protection was no longer based on its exclusivity but its intrinsic importance to

people and individuals, to their identity and their enjoyment of their human rights. It

has become fundamental in establishing cases of violations of international

∗

Associate Professor, Faculty of Law, University of Western Australia, Perth, Australia. I am

grateful for the funding provided for this project by the European Commission’s Marie Curie FP6

Action (No.MIF1-CT-2006-021861) hosted by the Law Department, European University Institute,

Fiesole, Italy.


3

humanitarian law and international criminal law, and assessing the claims of victims

of gross violations of human rights. Furthermore, this shift in rationale has been

reinforced with a broadening notion of cultural heritage in the late twentieth century.

No longer confined to tangible heritage like monuments, sites and works of art of

exceptional importance to all humanity, cultural heritage encompasses the intangible

and the ephemeral, like language, traditional knowledge, songs, dance, deemed

significant by a group (not necessarily a state).

In examining the protection of cultural heritage in this chapter, I focus on this

shifting rationale to highlight the ever-present interplay and interdependence between

international humanitarian law and human rights law. First, I outline the exceptional

treatment of cultural heritage in general international humanitarian law instruments

including those covering non-international armed conflicts, and its overlap with

international human rights law. Then, I detail how this protection has been built upon

by the specialist regime for the protection of cultural heritage during armed conflict

and belligerent occupation developed under the auspices of UNESCO. Next, I analyse

international criminal law jurisprudence from the International Military Tribunal,

Nuremberg to the International Criminal Court for the former Yugoslavia, to show

how efforts to prosecute violations of the laws and customs of war relating to cultural

heritage have been intrinsic to the articulation and prosecution of crimes against

humanity and genocide. Finally, I consider the evolving and potential future

normative trends in this field in the light of recent developments with reference to

obligations erga omnes, intentional destruction and the content of the obligation, and

intangible heritage and cultural diversity.

2. International humanitarian law and cultural heritage

From the nineteenth century codification efforts to humanise the laws of war,

international humanitarian law have bestowed singular treatment upon cultural

heritage. It has afforded it protection over and above other civilian property and

pronounced explicitly that violations of such obligations should be subject to legal

sanctions. While these protective and punitive strands would be elaborated by

international cultural heritage law and international criminal law, which I examine in

Parts 3 and 4 respectively below, this basic feature remains intact in contemporary

international humanitarian law.


4

As the reach of international humanitarian law was extended to non-

international conflicts with the emergence of human rights in international law, the

provisions relating to cultural heritage were likewise extended. This development

together with the recalibration of other international humanitarian law and human

rights provisions has reinforced the interdependence of the protection of cultural

heritage (tangible and intangible) and the effective enjoyment of human rights by

individuals and groups.

A Early developments

Philosophers and scholars since antiquity have condemned attacks on sacred

places and ceremonial objects.1 This prohibition traversed cultures and religious

traditions.2 While Hugo Grotius wrote in 1625 that: ‘[T]he law of nations in itself [did]

not exempt things that are sacred, that is, things dedicated to God or to the gods ... in a

public war anyone at all becomes owner, without limit or restriction, of what he has

taken from the enemy’.3 The practice of states from the Treaty of Westphalia of 1648

onwards, evidenced peace treaties which implicitly condemned pillage by sanctioning

the return of plunder.4 With the rise of humanism during this period, the rationale of

exceptionalism was gradually secularised with historic monuments and sites, and

1 See A. Gentili, De Juris Belli Libri Tres, trans. F. W. Kelse, (1598, reprinted 1933), Book III,

chapter 6, at 313-14; De Visscher, ‘International Protection of Works of Art and Historic Monuments’,

in: Department of State Publication 3590, International Information and Cultural Series 8, reprinted in

Documents and State Papers, June 1949, 821, at 823-825; Nahlik, ‘Protection internationale des biens

culturels en cas de conflit armé’, 120 RCADI (1967-I), 61; J. Toman, The Protection of Cultural

Property in the Event of Armed Conflict: Commentary on the Convention for the Protection of Cultural

Property in the Event of Armed Conflict and its Protocol, signed on 14 May 1954 in The Hague, and on

other instruments of international law concerning such protection, (1996), at 3-7; and R. O’Keefe, The

Protection of Cultural Property in Armed Conflict (2006), at 5-13.

2 A. Ndam Njoya, The African Concept, in UNESCO, International Dimensions of

Humanitarian Law, (1988), at 8; S. Adachi, The Asian Concept, at 16; and H. Sultan, The Islamic

Concept, at 38.

3 De Jure Belli Ac Pacis (The Law of War and Peace), (1625) Book III, chapter 1, §4.

4 Nahlik, supra note 1 at 77. In particular, the Congress of Vienna of 1815 following the defeat

of Napoleon: Müntz, ‘Les annexions de collections d’art ou de bibliothèques et leur rôle dans les

relations internationals’, 8 Revue d’histoire diplomatique (1895) 481, and 9 Revue d’histoire

diplomatique (1895); W. Treue, Art Plunder: The Fate of Art in War and Unrest, trans. B. Creighton

(1961), at 186-99; and A. F. Vrdoljak, International Law, Museums and the Return of Cultural Objects,

(2006), at 23-29.


5

works of art and science protected because of their aesthetic beauty and scientific

significance and not simply their religious importance.5

Writing during the Enlightenment, Emer de Vattel argued that certain

buildings, sites and objects ‘of remarkable beauty’ which were ‘an honour to the

human race and which do not add to the strength of the enemy’ should be spared. He

asked: ‘What is gained by destroying them? It is the act of a declared enemy of the

human race thus wantonly to deprive men of these monuments of art and models of

architecture.’6 Working during the same period, Jean-Jacques Rousseau likewise

maintained that private property of civilians and public property not serving a direct

military purpose, like places of worship or education and libraries, collections and

laboratories should be quarantined from hostilities. He wrote: ‘War … is not a relation

between men, but between states; in war individuals are enemies wholly by chance,

not as men, not even as citizens, but only as soldiers; not as members of their country,

but only as its defenders’.7 This rationale of protecting certain cultural heritage of

importance to humanity because of its significance to the arts and sciences, and the

distinction made between private and public property figured prominently in the

nineteenth century efforts to humanise and codify the rules of war at the international

level.

The perceived exceptional nature of certain cultural heritage compared to

other property manifested itself from the first codification initiatives in the mid-

nineteenth century. The Instructions for the Government of Armies of the United

States in the Field prepared by Francis Lieber (Lieber Code), promulgated as General

Order No.100 by President Abraham Lincoln in 1863 during the US Civil War made

the distinction between private and public property.8 Article 34 provided that ‘as a

5 J. Przyłuski, Leges seu statuta ac privilegia Regni Poloniae (1553), at 875 cited in Nahlik,

supra note 1, at 73, and Toman, supra note 1, at 4; and J. Gentilis, Dissertatio de eo quod in bello licet

(1690), at 21, cited in Nahlik, supra note 1, at 75.

6 E. de Vattel, Le Droit des Gens, ou Principes de la Loi Naturelle, appliqués à la Conduite et

aux Affaires des Nations et des Souverains, (1758, reprinted 1916), Book 3, Chapter 9, §168. See also

§173.

7 J.-J. Rousseau, The Social Contract, (1762, reprinted 1968), at 56-57.

8 Prepared by Francis Lieber and promulgated as General Order No.100 by President Lincoln,

24 April 1863, reproduced in D. Schindler and J. Toman (eds), The Laws of Armed Conflict. A

Collection of Conventions, Resolutions and Other Documents, (4th

revised and completed edn, 2004), at

3.


6

general rule’ the property of churches, hospitals, charitable organisations, places of

education and learning, museums of fine arts or science were deemed to be private

property. During hostilities, ‘classical works of art, libraries, scientific collections of

precious instruments, such as astronomical telescopes, as well as hospitals’ were to be

protected against ‘all avoidable injury’ even if located in fortified areas (Article 35).

Yet, it also provided that if such property of the enemy could be removed ‘without

injury’, the ruler of the conquering force could order its seizure with ownership to be

settled by the subsequent peace treaty. However, Article 36 also stated that: ‘In no

case shall they be sold or given away, if captured by the armies of the United States,

nor shall they ever be privately appropriated, or wantonly destroyed or injured.’ This

provision would find little support in later codification of international humanitarian

law which strictly forbade pillage either during hostilities or belligerent occupation. In

1868, Johann Caspar Bluntschli noted that while custom at the start of the century did

not support the protection of cultural heritage during armed conflict, popular opinion

increasingly viewed it as vandalism of ‘eternal monuments to the peaceful

development of nations’, with no direct benefit to the warring parties.9

Public outcry at the destruction of Strasbourg’s cathedral and library during

the Franco-Prussian War of 1870-1871 precipitated in part the international

conference instigated by Jean Henri Dunant, the founder of the International

Committee of the Red Cross, in mid-1874.10

It resulted in the International

Regulations on the Laws and Customs of War (Brussels Declaration), which although

it never came into force, prefigured many elements which characterise protection of

cultural heritage in contemporary international humanitarian law.11

It provided that

during belligerent occupation the property of municipalities and ‘institutions

dedicated to religion, charity and education, the arts and sciences even when State

property’ were to be treated as private property. The destruction, damage or seizure of

these institutions, historic monuments or works of art and science were to be

prosecuted by competent authorities (Article 8). The more general term – ‘religious’

9 Reprinted as J.-G. Bluntschli, Le droit international codifié (1895), at 602.

10 G. Rolin-Jaequemyns, ‘Essai complémentaire sur la guerre franco-allemande dans ses rapports

avec le droit international’, 2 Revue de droit international (1871) 288, at 302.

11 International Declaration concerning the Laws and Customs of War, 27 August 1874, not

ratified, 1(supp.) AJIL (1907), at 96; and Schindler and Toman, supra note 8, at 21.


7

buildings – was used at the behest of the Turkish delegation.12

During bombardment

and sieges, a commander was required to take ‘necessary steps … to spare, as far as

possible’ buildings dedicated to art, science, charitable purposes, and hospitals and

where the wounded were housed as long as it is not being used at the time for military

purposes (Article 17). However, the besieged were obliged to indicate the presence of

such buildings by ‘distinctive and visible signs communicated to other combatants’

beforehand. In contrast to the Lieber Code, it prohibited conquering troops pillaging

towns that had fallen under their control (Article 18).

The Laws of War on Land (Oxford Manual) adopted by the Institut de droit

international on 9 September 1880 deliberately reflected the provisions of the

Brussels Declaration ‘not [seeking] innovations [but] content[ing] itself with stating

clearly and codifying the accepted ideas of our age so far as this has appeared

allowable and practicable’.13

B 1899 Hague II and 1907 Hague IV Conventions and Regulations

The first binding international obligations for the protection of cultural

heritage related to the rules of war emerged from the series of international

conferences held at The Hague in 1899 and 1907.14

Convention (II) with Respect to

the Laws and Customs of War on Land and Annex, adopted in 1899 (1899 Hague II

Convention) and Convention (IV) respecting the Laws and Customs of War on Land,

adopted in 1907 (1907 Hague IV Convention) are only applicable in respect of

international armed conflict and if all belligerents are party to the treaty.15

Nonetheless, the International Military Tribunal at Nuremberg found that by 1939, the

12 See Toman, supra note 1, at 9.

13 Preface to Institut de droit international, ‘Les lois de la guerre sur terre. Manuel publié par

l’Institut de droit international’, 5 Annuaire de l’Institut de Droit International (1881-82) 157; and

Schindler and Toman, supra note 8, at 29, in particular see Articles 32, 34 and 53.

14 See Huber, ‘La propriété publique en cas de guerre sur terre’, Revue Générale de Droit

International Public, (1913), at 657.

15 Convention (II) with Respect to the Laws and Customs of War on Land and its annex:

Regulations concerning the Laws and Customs of War on Land, 29 July 1899, in force 4 September

1900, 187 Parry’s CTS (1898–99) 429, 1(supp.) AJIL (1907) 129; and Schindler and Toman, supra

note 8, at 55; and Convention (IV) respecting the Laws and Customs of War on Land, and Annex, The

Hague, 18 October 1907, in force 26 January 1910, 208 Parry’s CTS (1907) 77, 2(supp.) AJIL (1908)

90; and Schindler and Toman, supra note 8, at 55. See also Convention (IX) concerning Bombardment

by Naval Forces in Time of War, 18 October 1907, in force 26 January 1910, in Schindler and Toman,

supra note 8, at 1087, in which Article 4 equivalent to Article 27 of 1907 Hague IV Regulations.


8

regulations (Hague Regulations) annexed to these conventions were ‘recognized by

all civilized nations and were regarded as being declaratory of the laws and customs

of war’.16

The International Court of Justice,17

and the International Criminal Tribunal

for the former Yugoslavia (ICTY) have recognised and reaffirmed that these

obligations form part of customary international law, that is, binding even on non-

states parties.18

The 1907 Hague IV Convention in its preamble makes reference to its

predecessor, the 1899 Hague II Convention and the 1874 Brussels Declaration.19

It

also notes that until a ‘more complete code of the laws of war’ was agreed upon in

those instances falling outside the Convention, civilians and combatants remained

protected by international law principles ‘result[ing] from the usages established

between civilized peoples, from the laws of humanity, and the requirements of the

public conscience’.20

In addition to the general provisions relating to the protection of

civilian property, the regulations contain specialist provisions covering cultural

property during siege and bombardment (Article 27) and belligerent occupation

(Article 56).

During hostilities, ‘all necessary steps should be taken to spare, as far as

possible, buildings dedicated to religion, art, science, or charitable purposes, historic

monuments, hospitals, and places where the sick and wounded are collected’ as long

as they are not used for military purposes, marked with the distinctive sign, and

notified to the enemy (Article 27). This provision covers immovable heritage, with

movables only protected if housed within such buildings. The inclusion of the term

16 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14

November 1945 – 1 October 1946, (42 vols, 1947-1949), vol.I, at 253-254; and 41 AJIL (1947) 172, at

248-249.

17 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996) 226,

at 256; and Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory,

Advisory Opinion, ICJ Reports (2004) 136, at 172.

18 Prosecutor v. Dario Kordić and Mario Čerkez, Trial Judgment, No.IT-95-14/2-T, ICTY (26

February 2001), paras.359-62; and Prosecutor v. Miodrag Jokić, Trial Judgment, Case No.IT-01-42/1-S,

Trial Chamber I, ICTY, (18 March 2004), para.48.

19 Fourth preambular recital, 1907 Hague IV Convention, supra note 15. See also Russian

Circular Note proposing program of the first conference dated 30 December 1989, reprinted in: J.

Brown Scott, The Hague Conventions and Declarations of 1899 and 1907 accompanied by Tables of

Signatures, Ratifications, and Adhesions of the Various Powers and Texts of Reservations, (3rd

edn,

1918), at xviii.

20 Eighth preambular recital, 1907 Hague IV Convention, ibid.


9

‘historic monuments’ was made at the request of the Greek delegation to align the

ratione materiae more closely with Article 56.21

Pillage is prohibited during hostilities

and belligerent occupation (Articles 28 and 47).

During occupation, the ‘property of the communes, that of religious, charitable,

and educational institutions, and those of arts and science’, even if public property, is

accorded protection as private property with no proviso made for military necessity.

Destruction, intentional damage or seizure perpetrated against these institutions,

historical monuments, works of art or science, is forbidden and violations are to be

made subject to legal proceedings (Article 56). The more neutral term – ‘religious’

buildings – was deliberately used rather than ‘churches’.22

Charles de Visscher noted

this immunity covered not only immovable and movable property of these institutions

but also their assets including funds and security.23

He added that it was granted

because these objects and sites were ‘dedicated to an ideal purpose.’24

Finally, the Hague Regulations requirement that the occupying power take all

measures they are able to return public order and safety ‘while respecting, unless

absolutely prevented, the laws in force in the country’ necessarily relates to legislation

covering cultural heritage (Article 43).25

The International Court of Justice has stated

that this duty meant that an occupying power could be held responsible not only for its

own acts and omissions but also for failing to prevent others on that territory violating

human rights and international humanitarian law.26

However, during hostilities, they

would only be liable for the acts and omissions of their own forces.

21 De Visscher, supra note 1 at 837. See Nahlik, ‘Protection of Cultural Property’, in UNESCO,

supra note 2, at 205; and Nahlik, supra note 1, at 93-94.

22 A. Rolin, Le droit moderne de la guerre (1920), vol.1, §§535-540.

23 De Visscher, supra note 1, at 828 citing the report of Baron Rolin Jaequemyns which stated

that this provision circumscribed the power of the occupant ‘apply a fortiori to the invader during the

period preceding the establishment of regular occupation’ (footnote 26).

24 Ibid.

25 1907 Hague IV Convention, supra note 15. Cf. Article 43, 1899 Hague II Convention.

26 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of

Congo v. Uganda), No.116, 19 December 2005, at 60.


10

C 1923 Hague Air Rules

The Hague Regulations remain the essence of the protection afforded cultural

property in international humanitarian law to date. However, the lacunae in this

protection and lack of implementation during the First World War drew attention to

the need for the regime to be strengthened.27

There were various efforts on this front

during the course of the conflict. A draft international convention was prepared by

Ernst Zitelmann in the wake of a conference held between Austrian, German and

Swiss legal scholars in early 1915.28

It proposed the establishment of an international

administration in Bern to maintain lists of monuments protected during armed conflict

and occupation, with protection only being granted following acknowledgment of

such status by the belligerents.29

In 1918, the Nederlandsche Oudheidkundige Bond (Netherlands

Archaeological Society or NOB) circulated a report which stated that damage to

monuments and cultural objects impacted upon not only their owners and relevant

states but also ‘humanity as a whole’.30

It recommended the establishment of

demilitarised zones around monuments and sites of cultural significance, giving them

‘international status’ and placing an obligation on the host state to ensure that they

were not used for a military purpose.31

Under this proposal, an occupying power had

to positively protect monuments and sites, and cooperate with the local authorities to

these ends. Significantly, states would undertake preparation during peacetime for the

protection of cultural property during war.32

Like the German-Swiss initiative, it too

recommended the establishment of an international office to oversee compliance and

oversight by neutrals. However, it made no conclusions regarding criminal

27 Berlia, ‘Report on the International Protection of Cultural Property by Penal Measures in the

Event of Armed Conflict’, 8 March 1950 UNESCO Doc.5C/PRG/6, Annex I, at 3-4.

28 Jerusalem, ‘Monuments of Art in War-Time and International Law’, in P. Clemen (ed.),

Protection of Art During War and the German and Austrian Measures Taken for their Preservation,

Rescue and Research (1919), 135, at 140.

29 See E. Zitelmann, Der Kreig und die Denkmalpflege: Zeitschrift für Völkerrecht, X (1916), S.

I.

30 ‘Pays-bas. La protection des monuments et objets historiques et artistiques contre les

destruction de la guerre. Proposition de la Société néerlandaise d’archéologie’, 26 Revue générale de

droit international public (1919) 329, at 331.

31 See De Visscher, supra note 1, at 838; and Berlia, supra note 27, at 4.

32 De Visscher, supra note 1, at 839; and supra note 27, at 4.


11

prosecution for violations by national or international courts.33

De Visscher observed

that although these recommendations were not taken up immediately they had a

significant influence on the work of the Commission of Jurists who prepared the

subsequent Hague Rules Concerning the Control of Radio in Time of War and Air

Warfare (Hague Rules).34

The Hague Rules drafted in 1923 for the first time provided for the delineation

between general protection as contained in Article 27 of the 1907 Hague

Regulations,35

and special protection for monuments of greater historic importance.36

This latter provision was the first detailed and specific legal regime for the protection

of historic monuments during armed conflict.37

This Italian initiative was prepared as

a response to the aerial bombardment of Venice and Ravenna during the First World

War and drew inspiration from the NOB report. It centred on two innovations: first,

the creation of a ‘neutralized zone’ around ‘important historical (and artistic)

monuments’ to immune them from bombardment provided they were not used for

military purposes, and a system of international inspection of such sites.38

Also, the

notion of military defence as a qualifier of such protection is replaced with the more

restrictive military ‘objective’.39

Although the 1923 Hague Rules were not formally

adopted they were accepted as broadly reflective of international law by the United

Kingdom and Germany in the lead-up to the Second World War.40

33 De Visscher, supra note 1, at 835. See O’Keefe, supra note 1, at 42-43.

34 De Visscher, supra note 1, at 839; and ‘Commission of Jurists to Consider and Report upon

the Revision of the Rules of Warfare. General Report’, 32(supp.) AJIL (1938) 1, at 23.

35 Art.25 of the Hague Rules Concerning the Control of Radio in Time of War and Air Warfare,

Adopted 19 February 1923, not in force, UK Misc. No.14 (1924), Cmd 2201, 30 Revue générale de

droit international public (1923) 1, and Schindler and Toman, supra note 8 at 315.

36 Art.26, Hague Rules, ibid.

37 De Visscher, supra note 1 at 839 and 841. See ‘Commission of Jurists’, supra note 34, at 23.

38 ‘Commission of Jurists’, supra note 34, at 26-27; and De Visscher, supra note 1 at 842.

39 Art.24, Hague Rules, supra note 35. While welcoming this change to the Hague Regulations,

De Visscher was nonetheless scathing of the expansive interpretation given to military objective: supra

note 1, at 839-40.

40 O’Keefe, supra note 1, at 49.


12

D 1949 Geneva Convention IV and Universal Declaration of Human Rights

The renewed efforts in the immediate post-Second World War period to

further articulate rules for the protection of civilians during armed conflict and

belligerent occupation led to the finalisation of the various Geneva Conventions of

1949. Significantly, these international humanitarian law instruments, while

reaffirming the protection of civilian property afforded in the 1899 and 1907 Hague

Conventions, are silent on the protection of cultural property. However, the earlier

Italian proposal of neutralized zones for the protection of cultural property was

implemented in respect of protection of civilian populations in the Geneva

framework.41

The protection afford to civilian property necessarily covers cultural

heritage. Article 53 of the Geneva Convention relative to the Protection of Civilian

Persons in Time of War (Geneva Convention IV) prohibits ‘destruction’ of civilian

real or personal property subject to the proviso of military necessity.42

It is important

to note that it only relates to destruction, thereby reaffirming that the occupying power

may requisition or confiscate property for military purposes. However, pillaging is

prohibited (Article 33).

In addition, provisions in Geneva Convention IV which encompass human

rights also facilitate the protection of cultural heritage. For example, Article 27 of

Geneva Convention IV, which reiterates Article 46 of the Hague Regulations,

confirms that protected person’s honour, family rights, religious convictions and

practices, and manners and customs shall be respected.43

It is reaffirmed in the two

Additional Protocols to Geneva Conventions finalised in 1977 with the deliberately

broader wording: ‘convictions and religious practices’ used to encompass ‘all

41 ‘Historical Note concerning the Draft Convention for the Protection of Cultural Property in the

Event of Armed Conflict’, UNESCO Doc.CBC/7, at 5, para.11; and Committee of Governmental

Experts Convened in Paris from 21 July to 14 August 1952 to Draw Up the Final Draft of an

International Convention for the Protection of Cultural Property during Armed Conflict, Report of the

Rapporteur, UNESCO Doc.7C/PRG/7, Annex I, at 5.

42 12 August 1949, in force 21 October 1950, 75 UNTS 287, and Schindler and Toman, supra

note 8, at 575.

43 J. Pictet, Geneva Convention relative to the Protection of Civilian Persons in Time of War,

Commentary, (1958), at 200; and Pilloup, ‘La Déclaration universelle des Droits de l'Homme et les

Conventions internationales protégeant les victimes de la guerre’, Revue internationale de la Croix-

Rouge (1949), at 252-258.


13

philosophical and ethical practices’.44

The ICRC commentary states that this respect

of the person includes their physical and intellectual integrity.45

Intellectual integrity

is defined as ‘all the moral values which form part of man’s heritage, and appl[y] to

the whole complex structure of convictions, conceptions and aspirations peculiar to

each individual.’46

The phrase ‘respect for religious practices and convictions’ covers

‘religious observances, services and rites.’47

This provision is augmented by Article

38(3) (hostile territory) and Article 58 (occupation) of Geneva Convention IV

concerning access to religious ministers, and books and other materials to facilitate

the protected communities in their religious observances and practices.48

These obligations in respect religious practices are extended to prisoners of

war under Article 18 of the Hague Regulations, and reiterated and extended to

internees by the 1949 Geneva Conventions and Additional Protocols.49

With the

ICRC commentary explaining that it covers: ‘those [practices] of a physical character,

methods of preparing food, periods of fast or prayer, or the wearing of ritual

adornment.’50

In addition, Article 130 provides that internees when they die shall be

44 Art.75 of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to

the Protection of Victims of International Armed Conflicts (Additional Protocol I), 8 June 1977, in

force 7 December 1978, 1125 UNTS 3, and Schindler and Toman, supra note 8, at 711; and Art.4(1) of

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of

Victims of Non-International Armed Conflicts (Additional Protocol II), 8 June 1977, in force 7

December 1978, 1125 UNTS 609, and Schindler and Toman, supra note 8, at 775. See Y. Sandoz et la

(eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August

1949, (1987), at 1370, ¶5422: that this slight drafting modification was deliberate: see Official Records

of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian

Law applicable in Armed Conflicts, (1974-1977) (O.R.), vol.X, at 186-187, CDDH/405/Rev.1, paras.35

and 36; O.R. vol.XV, at 461, CDDH/407/Rev.1, para.43. The word “religious” only qualifies

“practices”; so that convictions including philosophical and political convictions, as well as religious

ones, are also protected.

45 Pictet, supra note 43, at 201.

46 Ibid.

47 Ibid., at 203.

48 See Arts 15(5) concerning protection of civilian religious personnel and 69(1) of Additional

Protocol I which refers to ‘other supplies essential to the survival of the civilian population of the

occupied territory and objects necessary for religious worship.’ The ICRC Commentary notes this is

more broadly defined than Art.58 of Geneva Convention IV and the objects are not described because

the civilian population itself determines what is of importance for their religious practices: Sandoz et al,

supra note 44, at 812, ¶2781.

49 See Art.16 of the Geneva Convention relative to the Treatment of Prisoners of War, 27 July

1929, in force 19 June 1931, 118 LNTS 343; Arts 34-37 of Convention (III) relative to the Treatment

of Prisoners of War, 12 August 1949, in force 21 October 1950, 75 UNTS 135. In respect of internees

see Art.93, Geneva Convention IV; and Art.5(1)(d), Additional Protocol II.

50 Pictet, supra note 43, at 406.


14

‘honourably buried, if possible according to the rites of the religion to which they

belonged…’.51

Article 27 of Geneva Convention IV also refers to respect for the ‘manners

and customs’ of protected persons which covers both individual and communal

elements.52

By way of explanation, the ICRC commentary notes: ‘Everybody

remembers the measures adopted in certain cases during the Second World War,

which could with justice be described as “cultural genocide”. The clause under

discussion is intended to prevent a reversion to such practices’.53

The overlap between

genocide, international humanitarian law and human rights is considered below in the

light of ICTY jurisprudence.

The protection afforded children during armed conflict and belligerent

occupation under international law extends to their cultural, and religious, heritage.

During armed conflict, parties must take necessary measures to ensure that children

under fifteen years that are orphaned or separated from their families, whether they

are nationals or not, can exercise their religion and their education in ‘a similar

cultural tradition’, where possible.54

According to the ICRC, this provision is

‘intended to exclude any religious or political propaganda designed to wean children

from their natural milieu; for that would cause additional suffering to human beings

already grievously stricken by the loss of their parents.’55

The same obligations apply

to neutral countries to which the children may be transferred.56

During belligerent

occupation, where local institutions are unable to do so, the occupying power must

organise that persons of the same nationality, language and religion as the child

maintain and educate them, where the child is orphaned, separated from their parents

or cannot be adequately cared for by next of kin or friends (Article 50).57

This

provision, which is based on Article 18(2) of the International Covenant of Civil and

51 Ibid., at 506. See also Art.76(3), 1929 Geneva Convention.

52 Ibid.

53 Ibid., at 204.

54 Art.24, 1949 Geneva Convention IV. See Pictet, supra note 43 at 186.

55 Ibid.

56 Ibid., at 188; and Final Record of the Diplomatic Conference of Geneva of 1949, (1963, 3

vols), vol. II-A, at 638.

57 Final Record, ibid., vol. II-A, at 828.


15

Political Rights covering the right to freedom of thought, conscience and religion and

defined as a non-derogable right, was the subject of extended deliberation.58

In respect

of the equivalent provision in Additional Protocol II, it was noted that continuity of

education is crucial to ensuring that children ‘retain their cultural identity and a link

with their roots’ and it sought to prohibit practices where they were deliberately

schooled in the cultural, religious or moral practices of the occupying power.59

As I

explain below, this aim ties in with those raised during deliberations over the

definition of genocide contained in the 1948 Genocide Convention.

Drafted, deliberated and adopted by the international community at the same

time as the Universal Declaration of Human Rights, it is not a coincidence that the

1949 Geneva Conventions have overlapping concerns with that instrument. There are

several provisions contained within general human rights instruments which have

been interpreted broadly to afford protection to cultural heritage during armed conflict

and belligerent occupation. While some human rights treaties provide for derogation

during ‘states of emergency’,60

the UN General Assembly and the International Court

of Justice have confirmed the continuing operation of non-derogable human rights

norms during armed conflict.61

In addition, in 2007 the Human Rights Council

recognised the mutually reinforcing protection afforded cultural rights and cultural

heritage by international humanitarian law and human rights.62

58 International Covenant on Civil and Political Rights, 16 December 1966, in force 23 March

1976, GA Res.2200A (XXI), 21 UN GAOR Supp. (No.16) at 52, UN Doc.A/6316 (1966), 999 UNTS

171. See Sandoz et al, supra note 44, at 898-899; and O.R. vol.III, at 300-301, CDDH/III/304,

CDDH/III/324 and Corr.1 and CDDH/III/325; and General Comment No. 22, Article 18 ICCPR, 30

July 1993. UN Doc.CCPR/C/21/Rev.1/Add.4, para.1.

59 Art.4(3) Additional Protocol II, and Sandoz et al, supra note 44 at 1378, ¶4552. See O.R.

vol.XV, at 79, CDDH/III/SR.46, para.11.

60 Art.4 ICCPR; Art.27 of American Convention on Human Rights, 21 November 1969, in force

18 July 1978, OASTS No.36, 1144 UNTS 123; Art.15 of Convention for the Protection of Human

Rights and Fundamental Freedoms (European Convention on Human Rights or ECHR), 4 November

1950, in force 3 September 1953, ETS 5, 213 UNTS 221. No derogation is permitted under the African

Charter on Human and Peoples’ Rights, 27 June 1981, in force 21 October 1986, OAU

Doc.CAB/LEG/67/3 rev. 5, 1520 UNTS 217, but Art.27(2) which has been strictly interpreted by the

African Commission on Human and Peoples’ Rights.

61 GA Res.2675 (XXV), 9 December 1970; and Legality of Nuclear Weapons, supra note 17, at

240; and Wall in the Occupied Palestinian Territory, supra note 17, at 173. See also Human Rights

Committee, General Comment No.29, Art.4 ICCPR States of emergency, 31 August 2001, UN Doc.

CCPR/C/21/Rev.1/Add.11, at para.3.

62 HRC Res.6/1, 27 September 2007, Protection of cultural rights and property in situations of

armed conflict, UN Doc.A/HRC/RES/6/1.


16

The equivalent human rights provisions to the international humanitarian law

protections outlined above include: the right to privacy and family life;63

the right to

freedom of expression including receiving and imparting information and ideas;64

the

right to education and full development of human personality;65

and the right to

freedom of thought, conscience and religion and which was defined as a non-

derogable right by the Human Rights Committee.66

The Committee’s General

Comment No.22 defines right to freedom of thought, conscience and religion broadly

to encompass a holistic understanding of cultural heritage, including tangible

(buildings of worship, ritual objects, distinctive clothing), intangible (language,

rituals), persons (religious leaders, teachers), and extends to include the freedom to

establish schools, and produce and disseminate texts.67

This overlap between human rights and protection of cultural heritage during

armed conflict and belligerent occupation is necessarily most pronounced in respect of

those rights specifically related to culture, namely, the right to participated in cultural

life,68

and the so-called minority protection provision.69

The International Court of

Justice, the UN Committee on Economic, Social and Cultural Rights (CESCR), and

Human Rights Council have interpreted the application of the ICESCR generally

(including the right to participate in cultural life) to extend to ‘both territories over

which a State party has sovereignty and to those over which that State exercises

territorial jurisdiction.’70

In respect of this obligation, states parties are required to

report on:

63 Art.12 of the Universal Declaration of Human Rights (UDHR), GA Res.217A(III), 10

December 1948; Art.17 ICCPR; and the European equivalent, Art.8 ECHR.

64 Art.19 UDHR, Art.19(2) ICCPR, and Art.5 ECHR.

65 Art.26(2) UDHR, Art.13(1) of International Covenant on Economic, Social and Cultural

Rights (ICESCR), 16 December 1966, in force 3 January 1976, GA Res.2200A(XXI), 21 UN GAOR

Supp.(No.16), 49, and 993 UNTS 3, and Art.2 ECHR.

66 Art.18 UDHR, Art.18(2) ICCPR, and Art.9 ECHR. See General Comment No.22, supra note

58, at para.1.

67 Ibid. para.4.

68 Art.27 UDHR, and Art.15 ICESCR.

69 Art.27 ICCPR.

70 Wall in the Occupied Palestinian Territory, supra note 17, at 180; UN Doc.E/C.12/1/Add.90;

and HRC Res.6/19, 28 September 2007, Religious and cultural rights in the Occupied Palestinian

Territory, including East Jerusalem, UN Doc.A/HRC/RES/6/19.


17

[T]he measures taken to protect cultural diversity, promote awareness of the

cultural heritage of ethnic, religious or linguistic minorities and of indigenous

communities, and create favourable conditions for them to preserve, develop,

express and disseminate their identity, history, culture, language, traditions and

customs.71

And:

To ensure the protection of the moral and material interests of indigenous peoples

relating to their cultural heritage and traditional knowledge.72

The latter reporting requirement reflects the protections contained in the UN

Declaration on the Rights of Indigenous Peoples,73

in particular Articles 11(culture),

12(religion) and 13(language). However, explicit extension of the application of the

1949 Geneva Conventions to indigenous peoples contained in Article 11 of the 1993

draft Declaration was deleted from the final text of this instrument.74

Article 27 of the International Covenant on Civil and Political Rights covers

cultural, religious and language rights of minorities. The Human Rights Committee’s

General Comment No.23 states that this provision imposes positive obligations on

states parties.75

UN Special Rapporteur Francesco Capotorti also suggested that

‘culture’ must be interpreted broadly to include customs, morals, traditions, rituals,

types of housing, eating habits, as well as the arts, music, cultural organisations,

literature and education.76

The Committee has similarly endorses a wide concept of

culture including, for example, a particular way of life associated with the use of land

resources, especially in relation to indigenous peoples.77

The inter-war minority

guarantees from which Article 27 traces its lineage, was the same tradition from

71 Guidelines on Treaty-Specific Documents to be Submitted by States Parties under Articles 16

and 17 of the International Covenant on Economic, Social and Cultural Rights, 13 January 2009, UN

Doc.E/C.12/2008/2 at 14, para.68.

72 Ibid., at para.71(c).

73 GA Res.61/295, 13 September 2007, UN Doc.A/RES/61/295.

74 Draft UN Declaration on the Rights of Indigenous Peoples, approved by the Working Group

on Indigenous Populations on 26 August 1994, UN Doc.E/CN.4/Sub.2/1994/56, 34 ILM (1995) 541.

75 General Comment No.23, UN Doc.HRI/GEN/1/Rev.1, 38 (1994).paras.6.1, 6.2 and 9.

76 UN Doc.E/CN.4/Sub.2/384/Rev.1 at 99-100.

77 General Comment No.23, para.7, supra note 75.


18

which the articulation of the crime against humanity of persecution and genocide in

international criminal law emerged.

E 1977 Additional Protocols I and II to the 1949 Geneva Conventions

The absence of specific reference to the protection of cultural heritage in the

1949 Geneva Conventions spurred the realisation of the first specialist international

humanitarian law instrument for the protection of cultural heritage: the 1954 Hague

Convention. However, before moving to this specialist framework, it is important to

acknowledge other developments in international humanitarian law in this field.

Foremost among these, formal and explicit reaffirmation of the exclusivity of cultural

heritage over and above other civilian property in binding international humanitarian

law instruments for the first time since the 1907 Hague Regulations is contained in

Additional Protocols I and II to the Geneva Conventions which were adopted in

1977.78

Furthermore, this protection was now afforded during non-international

conflicts. Geneva Conventions Common Article 3 applies to armed conflict of ‘non-

international character occurring on the territory of one of the contracting parties’;

while Additional Protocol II refers to conflict between armed forces of High

Contracting Parties and dissident armed forces or other organised armed groups which

exercise control over part of territory (Article 1). The 1954 Hague Convention is

likewise applicable to international and internal armed conflicts.79

Additional Protocol I covering international armed conflicts defines general

protection afforded civilian objects in Article 52. While there is a presumption of

civilian use in respect of places of worship, schools, houses and other dwellings, the

ICRC commentary suggests that it is confined to physical objects and not intangible

elements of civilian life.80

However, as explained below, during the 1940s, the UN

War Crimes Commission interpreted the equivalent provision contained in the Hague

78 See O.R., vol.I, at 213, and CDDH/215/Rev.1, para.68-70, and O.R. vol.XV, at 277-278. For

summary of the negotiating history of Art.53, Additional Protocol I and Art.16, Additional Protocol II,

see Toman, supra note 1, at 382-383.

79 Art.19 of the Convention for the Protection of Cultural Property in the Event of Armed

Conflict, 14 May 1954, in force 7 August 1956, 249 UNTS 240; and Schindler and Toman, supra note

8, at 999.which only refers to conflicts not of an international character: See Toman, supra note 1, at

386-387.

80 See Sandoz et la, supra note 44, at 633-34; and Toman, supra note 1, at 384.


19

Regulations to cover intangible aspects of cultural heritage related to the use of such

objects and sites.

Furthermore, Additional Protocol I provides specific protection for cultural

heritage. Article 53 is lex specialis in respect of historic monuments, works of art and

places of worship which ‘constitute the cultural or spiritual heritage of peoples.’ The

same phase is used in Article 16 of Additional Protocol II concerning non-

international armed conflicts. There is some conjecture concerning their ratione

materiae.81

The provision relates to movable and immovable heritage, even if

renovated or restored.82

While Article 53 operates without prejudice to the obligations

contained in 1954 Hague Convention and other relevant international treaties

including the Hague Regulations,83

it appears that the definition of cultural heritage

covered by it is distinguishable from that covered by the 1954 Hague Convention. The

ICRC commentary intimates that this phrase: ‘the cultural or spiritual heritage of

peoples’, is deliberately distinguishable from ‘of great importance to the cultural

heritage of every people’ contained in the preamble of the 1954 Hague Convention.84

It suggests that the ratione materiae is broader in respect of the Additional Protocols

for two reasons. First, the word ‘peoples’ was intended to ‘transcend[] national

borders’ and ‘problems of intolerance which arise with respect of religions which do

not belong to the country’.85

However, the ICRC maintains this provision only applies

to ‘a limited amount of very important cultural property, namely that which forms part

of the cultural or spiritual heritage of “peoples” (i.e., mankind), while the scope of the

81 Jiří Toman argues that the heritage protected by the Additional Protocols is broader because of

the extension to include sites and objects of spiritual importance: supra note 1, at 388. Cf. Roger

O’Keefe considers it no more than a shorthand form of the definition contained in the 1954 Hague

Convention: supra note 1, at 209.

82 O.R. vol.XV, at 277-278, CDDH/215/Rev.1, paras.68-70.

83 The Federal Republic of Germany, the United States and Canada indicated Art.53 did not

displace existing customary international law encompassed in Art.27 1907 Hague IV Convention

which covered various cultural and religious objects: O.R. vol.VI, 224, 225 and 240 Resolution 20

adopted by the Diplomatic Conference at the same time as the Protocols urged states who had not yet

done so to become party to the 1954 Hague Convention. Consequently, this was interpreted as

intending not to alter the existing legal framework for the protection of cultural property during armed

conflict: Sandoz et al, supra note 44, at 641, ¶2046.

84 Sandoz et al, supra note 44, at 646-647 and 1469-70, ¶¶2063-2068 and 4844 (emphasis

added).

85 O.R. vol. XV, at 220, CDDH/III/SR.59, para.68; and Sandoz et al, supra note 44, at 1469-70,

¶4844.


20

Hague Convention is broader …’.86

Second, the addition of the words ‘or spiritual’

encompasses ‘the places referred to are those which have a quality of sanctity

independently of their cultural value and express the conscience of the people.’87

The

ICRC study on customary international humanitarian law reaffirms this

interpretation.88

The ICRC position was referred to with approval by the ICTY

Appeals Chamber in Kordić and Čerkez.89

The Eriteria-Ethiopia Claims Commission

likewise drew a distinction between Article 53 and the preamble of 1954 Hague

Convention, which they found to be broader.90

Unlike the 1954 Hague framework, the Additional Protocol I provides

immunity for cultural property without the military necessity proviso.91

However,

violation of the obligation not to use such objects and sites ‘in support of the military

effort’ (Article 53(b)) may render it a military objective as defined under Article 52,

to which the principle of proportionality is applicable.92

Nonetheless, as under the

1954 Hague Convention, they cannot be the object of reprisals (Article 53(c)).

The inclusion of a simplified form of this cultural property provision in

Additional Protocol II covering non-international armed conflict was the subject of

‘heated controversy’.93

The primary concern of opponents was the perceived priority

of other humanitarian concerns in such a condensed instrument.94

Unlike Additional

86 J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, (3 vols.,

2005), vol.1, at 130.

87 Ibid., at 646-647, ¶¶2063-2068. The 1954 Hague Convention also covers sites, monuments

and objects of religious importance: Art.1(1).

88 Henckaerts and Doswald-Beck, supra note 86 at 130 and 132.

89 Prosecutor v. Dario Kordić and Mario Čerkez, Appeal Judgment, Case No.IT-95-14/2,

Appeals Chamber, ICTY (17 December 2004), para.91.

90 Partial Award: Central Front. Eritrea’s Claims 2, 4, 6, 7, 8 and 22, 43 ILM (2004), at 1249,

para.113.

91 Cf. Art.27 Hague IV Convention referring to ‘as far as possible’. If state is party to the 1954

Hague Convention and the Additional Protocol derogation under the specialist framework applies.

However, if party to the Additional Protocols but not 1954 Hague Convention then no derogation

permitted: Sandoz et al, supra note 44, at 647, ¶¶2071-73.

92 Sandoz et al, supra note 44, at 648, ¶2079; and Henckaerts and Doswald-Beck, supra note 86

at vol.II, 779-790, §§282-354.

93 O.R., vol.XV, at 107, CDDH/III/SR.49; and Sandoz et al, supra note 44, at 1466, ¶4828.

Art.16 was adopted by 35 votes in favour, 15 against and 32 abstentions: see O.R. vol.VII, at 156-157,

162-163, CDDH/SR.53.

94 O.R. vol.VII, at 156-157, 162-163, CDDH/SR.53.


21

Protocol I, this instrument covering as it does acts within a state makes a direct link

between international humanitarian law and human rights in its preamble.95

It was the

first international humanitarian law instrument to use the phrase ‘human rights’.96

The

protections afforded in Additional Protocol II are viewed as encapsulating these core

human rights which are viewed as non-derogable.97

It is instructive then that the final

text explicitly protects cultural heritage.

Contained in Part IV covering civilian populations, Article 16 provides a

summarised version of the protection afforded in Article 53 of Additional Protocol I.

Its ratione materiae is identical. However, it is only made without prejudice to the

operation of the 1954 Hague Convention, the only multilateral treaty in force (with

the exception of the regional 1935 Washington Treaty) which would have overlapping

jurisdiction in respect of non-international armed conflicts.98

Like Additional Protocol

I, the immunity afforded makes no proviso for military necessity but this is removed

when the object or site is ‘used … in support of the military effort’. Therefore, like

Article 53 of Additional Protocol I, Article 16 prohibits the targeting of such cultural

property and its use as a military objective.99

Unlike its sister provision, Article 16

does not prohibit reprisals. But Additional Protocol II does prohibit pillage (Article

4(2)(g)).

The specific protection afforded cultural heritage in international humanitarian

law from its earliest codification is reinforced by the concomitant explicit obligation

to punish violations. Provisions covering cultural property during belligerent

occupation in the 1874 Brussels Declaration and 1907 Hague Regulations specifically

state that violations ‘shall be made subject to legal proceedings.’100

In respect of no

95 First and second preambular recitals, Additional Protocol II.

96 Sandoz et al, supra note 44 at 1339, ¶4427. See Conference of Government Experts on the

Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict,

Geneva, 3 May-3 June 1972, (second session), Report on the work of the Conference (2 vols with

Annexes, 1972), vol.I, at 120, ¶¶2.536-2.537 and 2.539. The fourth preambular recital of this protocol

extends the application of the Martens Clause to non-international armed conflicts.

97 Sandoz et al, supra note 44 at 1340-41, ¶¶4429-4430.

98 Sandoz et al, supra note 44 at 1468, ¶4837: Referring to the failure to cite the 1970 UNESCO

Convention and 1972 World Heritage Convention it states: ‘These omissions have no material

consequences on protection.’ See also Toman, supra note 1, at 386.

99 See Sandoz et al, supra note 44 at 1470, ¶4845.

100 Art.8, 1874 Brussels Declaration; and Art.56, 1907 Hague IV Convention.


22

other provision in these instruments is such an obligation explicitly laid down. The

obligation is reaffirmed by Article 85 of Additional Protocol I which provide for

repression of grave breaches.101

Grave breaches include attacking and causing

extensive damage to ‘clearly-recognized historic monuments, works of art or places of

worship which constitute the cultural or spiritual heritage of peoples and to which

special protection has been given by special arrangement, for example, within the

framework of a competent international organization’ which were not being used in

support of military effort nor located in the immediate proximity of military objective

(Article 85(4)(d)). Special protection means not only that afforded under the 1954

Hague Convention, (and enhanced protection under the 1999 Second Protocol) but

includes the lists established under the 1972 World Heritage and 2003 Intangible

Heritage Conventions.102

The chapeau of the Article 85 requires that the breach be

committed wilfully and in violation of the Protocol or Conventions. If the object or

site is marked or on a list that is adequately circulated this would satisfied the mens

rea requirement.103

Article 85(3)(f) includes among grave breaches and war crimes

the perfidious use of emblem recognised by the Conventions or Additional Protocol I.

Article 85(5) states that such grave breaches will be considered ‘war

crimes’.104

The international and hybrid criminal tribunals established under the

auspices of the United Nations since the 1990s have jurisdiction in respect of war

crimes relating to civilian property generally and cultural heritage specifically.105

101 No grave breaches regime is explicitly applicable in respect of Article 16 of Additional

Protocol II, but it can be implied by referring back to Geneva Conventions Common Article 3 in

Article 1(1) which requires suppression of violations including criminalisation and universal

jurisdiction.

102 Sandoz et al, supra note 44, at 1002-1003, ¶3517, footnote 37; Roucounas, ‘Les infractions

graves au droit humanitaire (Article 85 du Protocole additionale I aux Conventions des Genève)’, 31

Revue Hellénique de droit international (1978) 57, at 113-114; and Toman, supra note 1 at 392.

103 Sandoz et al, supra note 44, at 1002-1003, ¶3517; Roucounas, ibid., at 109.

104 See Toman, supra note 1, at 392-393 (concerning the deliberations over the inclusion of this

sentence).

105 Art.3(d) (seizure of, destruction or wilful damage done to institutions dedicated to religion,

charity, education, the arts and sciences, historic monuments and works of art and science), Statute of

the International Criminal Tribunal for the Former Yugoslavia, GA Res.827 of 25 May 1993, amended

by GA Res.1166 (1998), 1329 (2000), 1411 (2002), 1431 (2002) 1481 (2003), 1597 (2005) and 1660

(2006) (ICTY Statute); Art.4(serious violations of Common Article 3 of 1949 Geneva Conventions and

Additional Protocol II), Statute of the International Criminal Tribunal for Rwanda, SC Res.955 of 8

November 1994 as adopted and amended to SC Res.1717 of 13 October 2006;

Arts.8(2)(b)(international conflicts), and 8(2)(e)(iv)(not international armed conflicts), Rome Statute of

the International Criminal Court, 17 July 1998, in force 1 July 2002, UN Doc.A/CONF. 183/9; 37 ILM


23

Likewise and pursuant to obligations on High Contracting Parties contained in Part V,

Section II of Additional Protocol I, a number of domestic penal codes provide for the

prosecution of such violations in national courts.106

Since the 1977 Additional Protocols, other instruments have been negotiated

to limit the use of weapons and their impact on civilian populations and private

property, which reference cultural heritage. For example, the 1980 Convention on

Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May

be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, with its

three optional Protocols,107

Protocol II Article 6(1)(b) refers to ‘historic monuments,

works of art or places of worship which constitute the cultural or spiritual heritage of

peoples’,108

and Protocol III Article 2 extends protection to civilian objects not

specifically cultural heritage.109

3. Specialist regime for cultural heritage: The Hague framework

As the travaux préparatoires of the 1954 Hague Convention and First Protocol

clearly evidence, this specialist framework developed under the auspices of UNESCO

1002 (1998); 2187 UNTS 90; Art.3 (Serious violations of 1949 Geneva Conventions and Additional

Protocol II including pillage), Statute of the Special Court for Sierra Leone, in Agreement between the

United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra

Leone, SC Res.1315 of 14 August 2000, 2178 UNTS 138, 145; 97 AJIL (2000) 295; UN

Doc.S/2002/246, appendix II; Art.9 (jurisdiction includes grave breaches of the 1949 Geneva

Conventions), Agreement Between the United Nations and the Royal Government of Cambodia

Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of

Democratic Kampuchea, GA Res.57/228B of 22 May 2003, UN Doc.A/RES/57/228B (2003) Annex;

Art.6 (destruction and serious damage to property, not justified by military necessity and carried out

unlawfully and wantonly), Law on the Establishment of Extraordinary Chambers in the Court of

Cambodia for the Prosecution of Crimes committed during the period of Democratic Kampuchea, with

the inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006). This later law

provides specific jurisdiction for the prosecution of persons violating obligations under the 1954 Hague

Convention during the Khmer Rouge regime: Art.7.

106 Also Arts.146 and 147 of Geneva Convention IV. For enactment into domestic legislation: see

Henckaerts and Doswald-Beck, supra note 86, at vol.II, at 746-755, §§105-172.

107 10 October 1980, in force 2 December 1983, 1342 UNTS 137, and Schindler and Toman,

supra note 8, at 181.

108 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices

(Protocol II), 10 October 1980, in force 2 December 1983, 1342 UNTS 137, and Schindler and Toman,

supra note 8 at 191. Amended to cover non-international armed conflicts also, 3 May 1996, in force 3

December 1998, UN Doc.CCW/CONF.I/16, and Schindler and Toman, supra note 8 at 196.

109 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), 10

October 1980, in force 2 December 1983, 1342 UNTS 137, and Schindler and Toman, supra note 8 at

210.


24

after the Second World War was a product of its times. It cannot be fully understood

without reference to the international humanitarian law instruments which preceded it,

or by ignoring contemporaneous developments like the Nuremberg trials, the

Genocide Convention and Universal Declaration of Human Rights.

A response to the silence of the 1949 Geneva Conventions concerning cultural

heritage specifically, the 1954 Hague framework borrowed from them to articulate the

first specialist instrument for the protection of cultural heritage during armed conflict

and belligerent occupation. The 1954 Hague Convention also traces its lineage to the

defunct inter-war efforts to establish a dedicated regime for cultural heritage, and this

is especially evident in the inclusion of peacetime measures. However, the

development came at a price, namely, the continued application of the military

necessity proviso.

A Roerich Pact and 1935 Washington Treaty

The damage inflicted on cultural heritage during the First World War

highlighted the inadequacies of existing general international humanitarian law

instruments like the 1899 and 1907 Hague Conventions especially in the face of new

technologies which render war total and no longer able to be confined to a discrete

area. The distinction between defended and undefended towns was no longer

sustainable. Such destruction of objects and sites described as ‘the common heritage

of civilisation’ was viewed as ‘an outrage to humanity’ and drove initiatives for the

formulation of a specialist instrument.110

Accordingly, as noted above, the first efforts

occurred during the progress of the war including the Zitelmann proposal and the

NOB report which paved the way for the shift in the modalities of protection

contained in the instruments prepared during the interwar period.

The Treaty on the Protection of Artistic and Scientific Institutions and Historic

Monuments (1935 Washington Treaty) which incorporated the principles contained in

the Roerich Pact was the first specialist multilateral instruments for the protection of

cultural property during armed conflict and peacetime.111

This was primarily a Pan-

110 C. Phillipson, International Law and the Great War (1915), at 168.

111 15 April 1935, in force 26 August 1935, OASTS No.33, 167 LNTS 289, 30(supp.) AJIL (1936)

195; and Schindler and Toman, supra note 8, at 991.


25

American Union initiative drafted by Georges Chklaver and Nicholas Roerich.112

The

preamble of the Roerich Pact referred to the obligation of all nations to promote ‘the

advancement of the Arts and Science in the common interest of humanity’ and that

‘the Institutions dedicated to the education of youth, to Arts and Science, constitute[d]

a common treasure of all the Nations of the World’.113

The draft text was originally

presented to the League of Nations’ Office International des Musées (OIM). It

subsequently found favour with the Pan-American Union which adopted it on 15

April 1935. The League had earlier rejected similar entreaties determining that it was

‘both difficult and inopportune’ to consider such a project when its efforts were

devoted to the ‘elimination of war.’114

The preamble of the 1935 Washington Treaty defined its aim as the

‘preserv[ation] in any time of danger all nationally and privately owned immovable

monuments which form the cultural treasures of peoples.’ It remains binding on

eleven American countries including the United States. The instrument covers

immovable objects namely, historic monuments, museums, scientific, artistic,

educational and cultural institutions and related personnel, which are considered

‘neutral’,115

and to respected and protected by belligerents (Article 1). Movable

objects are protected if located in such protected buildings. If the site or monument is

used for military purposes the protection is lost (Article 5). However, the qualification

of ‘military necessity’ itself is not mentioned in the instrument. The territorial state

must pass necessary domestic legislation to effect such protection (Article 2), display

a distinct flag over these institutions (which differs from the one provided under the

112 6 Revue de droit international (Paris) (1930) 593; and Seventh International Conference of

American States, Minutes and Antecedents with General Index, Montevideo, 1933, n.p., Roerich

Museum Archives, New York.

113 Second and Third recitals, Preamble, Roerich Pact, ibid. See G. Chklaver, ‘Projet d’une

convention pour la protection des institutions et monuments consacrés aux arts et aux sciences’, 6

Revue de droit international (Paris) (1930) 589 at 590: where he refers to monuments and buildings

which constitute the ‘common heritage of humanity’.

114 LNOJ, 18

th Year, No.12 (December 1937), at 1047. The OIM preferred to circulate

recommendations to national authorities based on those produced by the NOB covering peacetime

measures for the preparation of protection of cultural heritage during armed conflict: J. Vergier-

Boimond, Villes sanitaires et cites d’asile (1939), at 122-3 and 318-19.

115 Art.2, 1935 Washington Treaty provides: ‘The neutrality …. shall be recognized in the entire

expanse of territories subject to the sovereignty of each of the Signatory and Acceding States, without

any discrimination as to the State allegiance of said monuments and institutions.’


26

1907 Hague Regulations and 1954 Hague Convention) (Article 3),116

and provide a

list of relevant sites to the Pan-American Union (Article 4). The 1954 Hague

Convention is supplementary to the Roerich Pact in the relations between High

Contacting Parties.117

B 1938 OIM draft Convention and 1939 OIM Declaration

During the same period, the League of Nations’ International Committee on

Intellectual Cooperation (ICIC) commenced preparing an instrument for the

protection of cultural heritage during armed conflict precipitated by the outbreak of

the Spanish Civil War and Sino-Japanese War.118

The OIM was charged with

undertaking the necessary work and it commissioned Charles de Visscher to author a

report having regard to the Committee of Jurists’ work for the 1923 Hague Rules and

the 1918 NOB survey.119

His report was then presented to the ICIC that approved a

meeting of legal and military experts.120

The preliminary draft international

convention with regulations (1938 OIM draft Convention), prepared by Geouffre de

Lapradelle, Nicholas Politis, De Visscher and others, was ‘confine[d] … to what

seemed feasible in practice, rather than aim at a higher mark...’.121

The international

conference called to negotiate this instrument in The Hague was cancelled because of

the outbreak of the Second World War.122

Instead, a Declaration Concerning the

Protection of Historic Buildings and Works of Art in Time of War pared down to the

116 This flag is replaced by the distinctive sign contained in Art.16 of 1954 Hague Convention:

Art.36(2) 1954 Hague Convention.

117 Fourth preambular recital and Art.36(2), 1954 Hague Convention.

118 LNOJ, 18

th Year, No.12 (December 1937), at 1047. See Thomas and Thomas, ‘International

aspects of the Civil War in Spain 1936-1939’, in R. A. Falk (ed.), The International Law of Civil War

(1971), at 111.

119 See De Visscher, ‘La protection internationale des objets d’art et des monuments historiques.

Deuxième Partie. Les monuments historiques et les œuvres d’art en temps de guerre et dans les traités

de la paix’ 16 Revue de droit international (3ème série) (1935), at 246, and 35-36 Mouseion (1936) 1;

Office International des Musées, La protection de monuments et œuvres d’art en temps de guerre,

(1939); and 2 Art et Archéologie. Receuil de législation comparée de droit international (1940), at 47.

120 Doc.O.I.M.53.1926; Doc.O.I.M.96.1937; and ICIC Resolution, LNOJ, 18

th Year, No.12

(December 1937), at 1004.

121 LNOJ, 19

th Year, No.11 (November 1938), at 936-91; and De Visscher, supra note 1, at 861.

See ‘Report by the Directors’ Committee of the International Museums Office to the International

Committee on Intellectual Co-operation for the Year 1937/38, together with a Preliminary Draft

International Convention on the Protection of Historic Buildings and Works of Art’, in LNOJ, 19th

Year, No.11 (November 1938), at 937.

122 UNESCO Doc.CBC/7, at 3, para.8.


27

ten articles was adopted by Belgium, Spain, Greece, the United States and the

Netherlands (1939 OIM Declaration).123

The OIM initiative’s rationale for the protection of cultural property was

encapsulated from its initial proposal. Bolivia raised the need for a multilateral

specialist instrument which protected that which was ‘a matter of importance to

civilisation as a whole.’124

The 1938 OIM draft convention’s preamble provided:

Whereas the preservation of artistic treasures is a concern of the community of

States and it is important that such treasures should receive international

protection;

Being convinced that the destruction of a master piece, whatever nation may have

produced it, is a spiritual impoverishment for the entire international

community.125

Only this second preambular recital was retained in the 1939 OIM Declaration.

The OIM draft convention was applicable to ‘disturbances’ and ‘armed

conflicts’ within a state (draft Article 10), with obligations particularly those related to

movable heritage and their removal for safekeeping modified accordingly. The

experts’ commentary advised that as the proposed instrument was ‘conceived in a

spirit of international solidarity’ it was ‘only natural that it also envisage[d] the

dangers which threatened monuments and works of art during civil disturbances.’126

The 1939 Declaration made no such concession.

Neither the declaration nor the draft convention had a dedicated provision

defining its ratione materiae. It referred only to ‘historic buildings’, ‘monuments’ and

‘works of art’ and by extrapolation covers both movable and immovable heritage.

The international obligation to protect such cultural property fell to states in

whose territory it was located.127

Accordingly, such states were duty bound to provide

123 De Visscher, supra note 1, at 859; 2 Art et Archéologie. Receuil de législation comparée de

droit international (1940), supplement; Berlia, supra note 27, Annex I, at 5-7; and M. Deltenre,

General Collection of the Laws and Customs of War, (1943), at 755-759.

124 LNOJ, Special Supplement No.161 (1936), at 57.

125 LNOJ, 19

th Year, No.11 (November 1938), at 936.

126 Ibid.

127 LNOJ, 19



28

material protection to objects and sites against the destructive impact of war and

‘insure such protection by all the technical means at their disposal’ (Article 1). In their

commentary, the experts noted these obligations implied ‘recognition of the principle

that the preservation of artistic and historical treasures is a matter that concerns the

world as a whole. The countries possessing artistic treasures are merely their

custodians and remain accountable for them to the international community.’128

The projected peacetime measures contained in the draft convention and

inspired by the NOB report were incorporated, in abbreviated form, into the 1939

OIM Declaration. Signatories agreed to take ‘all possible precautions’ to spare

cultural property during military engagements and that they were immuned from

reprisals. Territorial states were to refrain from using cultural property and its

surroundings for purposes that would expose it to attack (Article 2). Their armed

forces were to be instructed to respect such property and were prohibited from looting

or damaging it during the armed conflict (Article 3). ‘[E]ssentially important’ sites

were to be marked as prescribed by Article 27 of the 1907 Hague Regulations by the

competent governmental authorities and any abuse of the protective marking was to

be prosecuted (Article 6). The obligation to respect remained for all cultural property,

even if unmarked.

The 1939 Declaration retained the notion of ‘neutrality’ granted on the basis of

removal of military advantage originally proposed by the NOB report and 1923

Hague Rules. The committee of experts commenting on the failure of the operation of

the Hague Regulations noted: ‘It was felt that the only possible way to protect

monuments and works of art … was to meet the destructive effects of the war with

defensive measures equally as effective, or, still better, to divest such monuments of

anything likely to provoke their destruction.’129

Accordingly, refuges established to

house movable heritage were not to be put to use for a purpose nor located near a site

which would render them military objectives (Article 4).130

Further, in respect of

monuments, groups of monuments or built-up areas, the safeguarding of which [was]

128 Ibid., at 961.

129 LNOJ, 19


130 States not involved in the armed conflict were encouraged to assist those that were by

providing refuge for their movable heritage during the hostilities: Art.7, 1939 OIM Declaration.


29

of exceptional importance for the international community’, states were encouraged to

enter agreements for special protection during armed conflict (Article 5).131

During belligerent occupation, the occupying power was required to bring

cultural property of ‘artistic or historic interest’ to the attention of its forces and

counsel them that their preservation ‘[was] the concern of the entire international

community’ (Article 8). Also, existing national staff employed in respect of refuges,

museums or monuments were afforded the same protection as the civilian population

and were to be retained ‘unless there is any legitimate military reason for their

dismissal.’ Furthermore, the occupying power was to take all necessary action to

preserve damage cultural property, but could not go beyond ‘strengthening’ it.

Finally, the signatories agreed that any violations of the Declaration were to be

examined by a Commission of Inquiry (Article 9). The Committee was composed of

five persons from neutral countries having expertise in fine art, antiquities, arbitration

or jurists with an international reputation. Two persons were nominated by the

belligerent state alleging the breach and two nominated by the other belligerent, with

the fifth member who acted as chairperson was nominated by these four. The

Commission could also fulfil any other task entrusted to it by the belligerents

designed to facilitate the aims of the Declaration.

At the outbreak of the war, US President Franklin D. Roosevelt requested

reassurances from Germany, France and the United Kingdom that civilian populations

and property would be spared.132

Germany, France, the United Kingdom and Poland

responded affirmatively. Indeed, a joint French and British statement on 3 September

1939 advised that they ‘solemnly and publicly affirm … to preserve, with every

possible measure, the monuments of civilisation … they will exclude objectives

which do not present a clearly defined military objective….’133

The belligerents

131 The expert commentary noted a similar provision included in the draft convention was

intended for those urban centres which have so many monuments that they could not satisfy the special

protection requirements but nonetheless were ‘of essential importance to the world at large’: LNOJ,

19th

Year, No.11 (November 1938), at 962.

132 OIM, supra note at 222.

133 Ibid., at 225-226.


30

largely adhered to these assurances until 1943.134

The devastation wrought to civilians

and their property thereafter by Axis forces became the subject of prosecutions before

the post-war military tribunals, which are considered in Part 3 below.

C 1954 Hague Convention, and First and Second Hague Protocols

In 1949, the fourth UNESCO General Conference adopted a resolution

acknowledging the need to protect ‘all objects of cultural value, particularly those

kept in museums, libraries and archives, against the probable consequences of armed

conflict’.135

Thereafter, the UNESCO Secretariat restarted the process of formulating

a convention suspended because of the war which led to the adoption of the

Convention for the Protection of Cultural Property in the Event of Armed Conflict

five years later (1954 Hague Convention).136

The present day specialist international humanitarian law framework for the

protection of cultural heritage during armed conflict and belligerent occupation

includes the 1954 Hague Convention, the 1954 Hague Protocol,137

and the 1999

Second Protocol.138

Each instrument bears evidence of concessions made to

encourage their uptake and ensure a minimum standard of conduct during hostilities

and occupation.139

The most significant compromise is the proviso of military

necessity, which was retained in the 1999 Second Protocol negotiated two decades

after the Additional Protocols to the 1949 Geneva Conventions.

134 P. J. Boylan, ‘Review of the Convention for the Protection of Cultural Property in the Event of

Armed Conflict (The Hague Convention of 1954)’, (1993), UNESCO Doc.CLT-93/WS/12, at 35-37.

135 Resolution 6.42, in Records of the General Conference of the United Nations Educational,

Scientific and Cultural Organization, Fourth Session, Paris 1949, Resolutions (1949), at 27.

136 See UNESCO Doc.CBC/7.

137 Protocol for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954,

in force 7 August 1956, 249 UNTS 358; and Schindler and Toman, supra note 8, at 1027.

138 Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event

of Armed Conflict, 26 March 1999, in force 9 March 2004, 38 ILM (1999), at 769; and Schindler and

Toman, supra note 8, at 1037.

139 UNESCO Doc.7C/PRG/7, Annex I, at 6. During the Diplomatic Conference to finalise the

Second Protocol, China, Denmark, Ireland, United Kingdom, and the United States ‘announced

progress towards their participation in the Hague Convention’: Summary Report, Diplomatic

Conference on the Second Protocol to the Hague Convention for the Protection of Cultural Property in

the Event of Armed Conflict, June 1999, at 2, para.8. China (2000), Denmark (2003) and the United

States (2009) have become states parties.


31

The 1954 Hague Convention, and therefore the two protocols, owes much to

the legacy of the inter-war efforts. Its preamble acknowledges it is ‘guided by the

principles’ contained in the 1899 Hague II and 1907 Hague IV Conventions and the

1935 Washington Treaty.140

The convention’s rationale contained in the second and

third preambular recitals tacitly replicates that of the stalled OIM draft convention:

Being convinced that damage to cultural property belonging to any people

whatsoever means damage to the cultural heritage of all mankind, since each

people makes its contribution to the culture of the world;

Considering that the preservation of the cultural heritage is of great importance

for all peoples of the world and that it is important that this heritage should

receive international protection;141

For the first time we have a reference to ‘cultural heritage’ rather than ‘cultural

property’ in such an instrument.142

It points to its intergenerational importance, an

aspect reaffirmed by a resolution adopted at the first meeting of the High Contacting

Parties to the Convention noted that ‘the purpose of the Convention … is to protect

the cultural heritage of all peoples for future generations.’143

The preamble also deliberately refers to ‘peoples’ rather than ‘states’.144

The

original text contained the words used in a 1932 ICIC Resolution which stated that the

‘preservation of the artistic and architectural heritage of mankind [was] a matter of

interest to the community of States.’145

This amendment together with the redrafted

version of the current second preambular recital was proposed by the USSR

140 Fourth preambular recital, 1954 Hague Convention.

141 Second and third preambular recitals, 1954 Hague Convention.

142 UNESCO Doc.7C/PRG/7, Annex II, at 20.

143 UNESCO Doc.CUA/120, para.22.

144 Cf. UNESCO Doc.7C/PRG/7, Annex II, at 20. See Toman, supra note 1, at 42, and O’Keefe,

supra note 1, at 95.

145 LNOJ, 13

th Year, No.11 (November 1932), at 1776. The OIM draft had read: ‘Whereas the

preservation of artistic treasures is a concern of the community of States and it is important that such

treasures should receive international protection’: LNOJ, 19th

Year, No.11 (November 1938), at 936,

Appendix 2, sub-appendix. The draft preamble of the 1954 Hague Convention had originally read:

‘Considering that the preservation of the cultural heritage is the concern of the community of States and

it is important that this heritage should receive international protection’: 7C/PRG/7, Annex II, at 20.

The USSR suggested the following amendment: ‘Replace “is the concern of the community of States”

by “is of great importance for all peoples of the world”’: Doc.CBC/DR/37.


32

delegation.146

The travaux noted that armistice agreements and peace treaties after the

conflict had provided for restitution of cultural property and the Nuremberg Tribunal

has ‘introduced the principle of punishing attacks on the cultural heritage of a nation

into positive international law.’147

The Hague Convention was a response to the

destruction caused by belligerents against enemy states and their own nationals during

the Second World War. As I explain below, this rationale is concomitant with other

instruments developed in response to those atrocities, including the Nuremberg

Principles, the Genocide Convention and Universal Declaration of Human Rights.

Like the 1949 Geneva Conventions, the 1954 Hague Convention applies to

international and non-international armed conflicts.148

In respect of internal armed

conflict each of the parties to the conflict is bound to the convention’s obligations ‘as

a minimum’ (Article 19(1)). The application of the Convention to non-international

armed conflict is recognised as forming part of customary international law.149

In

respect of international armed conflicts, if one of the parties is not a High Contracting

Party, the treaty obligations remains binding on the High Contracting Parties and any

other party which declares it accepts and applies the obligations. (Article 18(3)). The

travaux record that this ‘refusal to regard non-contracting States purely and simply as

third parties’ was deliberate because of the ‘moral obligation to respect the cultural

property of an adversary not party to the Convention, such property belonging to the

international community as well as the State concerned.’150

In addition, it should be

noted that the United Nations has indicated its willingness to be bound by this

146 Ibid. The draft recital had read: ‘Being convinced that damage to cultural property results in a

spiritual impoverishment for the whole of humanity’: 7C/PRG/7, Annex II, at 20. The OIM draft had

read: ‘Being convinced that the destruction of a master piece, whatever nation may have produced it, is

a spiritual impoverishment for the entire international community’: LNOJ, 19th

Year, No.11 (November

1938), at 936, Appendix 2, sub-appendix.

147 UNESCO Doc.7C/PRG/7, Annex I, at 5.

148 Article 19, 1954 Hague Convention; and Art.22, 1999 Second Hague Protocol. The travaux of

the First Protocol noted that: ‘Where property has changed hands on the national territory and has not

been exported, the case is one for the national legislation alone’: UNESCO Doc.CL/717, Annex IV, 47.

O’Keefe is of the opinion that the provisions relating to belligerent occupation (in particular 1954

Hague Protocol) do not extend to non-international armed conflict: supra note 1, at 98. Cf. Prott, ‘The

Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The

Hague Convention) 1954’, in M. Briat and J. A. Freedberg (eds), Legal Aspects of International Trade

in Art, (1996), 167 at 170.

149 Prosecutor v. Duško Tadić, Interlocutory Appeal on Jurisdiction Judgment, No.IT-94-1-A,

Appeals Chamber, ICTY, (2 October 1995), paras.98 and 127.

150 UNESCO Doc.7C/PRG/7, Annex I, at 5-6.


33

framework pursuant to the request contained in Resolution I of the Final Act of the

Intergovernmental Conference in 1954.151

The definition of cultural property covered by the 1954 Hague Convention

moves beyond the nature and purpose approach of earlier instruments. This elaborate

definition covers publicly or privately owned, movable and immovable property ‘of

great importance to the cultural heritage of every people’ including monuments,

archaeological sites, groups of buildings, works of art, books, scientific collections,

archives, buildings for their preservation including museums, libraries, archival

depositories and refuges, and centres containing a large repository of cultural heritage

(Article 1).152

Read consistently with the preamble, ‘importance’ of the cultural site or

object should not be determined exclusively by the state where it is located. Rather it

extends to ‘people’.153

This definition is applied to the two optional protocols also.154

The 1954 Hague Convention together with its regulations elaborate obligations

for the safeguarding and respect of cultural property by the High Contracting Parties

which takes effect during peacetime, armed conflict and belligerent occupation. The

‘safeguarding’ or positive measures to be implemented during peacetime and

espoused by 1918 NOB report and 1923 Hague Rules finally find binding force in

Article 3 of the Convention. It obliges High Contracting Parties ‘to prepare in time of

peace for the safeguarding of cultural property situated within their own territory

against the foreseeable effects of an armed conflict, by taking such measures as they

consider appropriate’.155

The measures to be taken are left to the discretion of the

151 Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed

Conflict (1954), at 3-5, Toman and Schindler, supra note 8 at 995; and Secretary-General’s Bulletin on

the Observance by UN Forces of International Humanitarian Law, 6 August 1999, UN

Doc.ST/SGB/1999/13, para.6.6.

152 See Toman, supra note 1, at 45-56; and O’Keefe, supra note 1, at 101-111.

153 O’Keefe argues it must be of national importance as importance is determined by the state

party: supra note 1, at 103-4. While it is the responsibility of each state to identify which property is

protected under the Convention, to read the definition narrowly is not only inconsistent with the spirit

of the Convention as encapsulated in the preamble but subsequent developments in the field of cultural

heritage law.

154 Art.1, First Protocol; and Art.1(b), 1999 Second Protocol.

155 See O’Keefe, supra note 1, at 111-120; Toman, supra note 1 at 59-66; and Boylan, supra note

134, at 61-73.


34

High Contracting Party in the light of its financial and technical circumstances.156

This lack of detail led to further elaboration of the obligation in the Second Protocol,

including the preparation of inventories, emergency measures against fire or structural

collapse, plans for the removal of movable cultural property or their adequate

protection in situ, and nomination of competent authorities.157

Other relevant

measures required by the Convention itself include the issuing of military regulations

or instructions and fostering in the armed forces ‘a spirit of respect for the culture and

cultural property of all peoples.’158

Also, cultural property should be marked with the

distinctive emblem.159

Failure to undertake these obligations to safeguard in

peacetime does not waive obligations to respect which arise when hostilities break

out.160

The obligations to respect (‘obligation not to do’) arising during hostilities,161

are triggered by a declaration of war or an armed conflict between two or more High

Contracting Parties, even if not recognised as state of war by one of them.162

It applies

to total or partial occupation of the territory of High Contracting Party even if there is

no resistance. The obligation to respect includes, first, undertaking to respect cultural

property situated within their own territory as well as within the territory of other

High Contacting Parties, by refraining from any use of the property and its immediate

surroundings for purposes which are likely to expose it to destruction or damage in

156 UNESCO Doc.7C/PRG/7, Annex I, at 8; and A. Noblecourt, Protection of Cultural Property

in the Event of Armed Conflict (1958). The reports of the High Contracting Parties to the convention

provide detailed information about the preventive steps taken by individual states: see for example,

Report on the activities from 1995 to 2004, UNESCO Doc.CLT.2005/WS/6.

157 Art.5, 1999 Second Protocol, and Guideline 27 of Draft Guidelines for the Implementation of

the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in

the Event of Armed Conflict Developed by the Committee for the Protection of Cultural Property in the

Event of Armed Conflict at its Second Meeting, 17-19 December 2007, UNESCO Doc.CLT-

07/CONF/212/3 Rev.2, at 12.

158 Art.7(1), 1954 Hague Convention. Further, parties undertake to plan with their military

personnel to secure cooperation with specialist civilian authorities: Art.7(2), 1954 Hague Convention

and Art.82, Additional Protocol I. For a survey of military manuals: see Henckaerts and Doswald-Beck,

supra note 86, at vol.II, Part 2, 782-786 and 793-796.

159 Arts 6 and 16, 1954 Hague Convention.

160 Art.4(5), 1954 Hague Convention.

161 The travaux notes that the obligation to respect ‘means abstention from endangering cultural

property and the arrangements which ensure its safeguarding, and abstention from prejudicing them’:

UNESCO Doc.7C/PRG/7, Annex, at 8.

162 Art.18, 1954 Hague Convention.


35

the event of armed conflict.163

Second, they must refrain from any act of hostility

directed against such property. This obligation is subject to the proviso that it will be

waived if ‘military necessity imperatively requires.’164

As noted above, this qualification does not form part of the protection afforded

under general international humanitarian law and its inclusion in the 1954 Hague

framework was contested.165

Despite recommendations to the contrary,166

its

application was reaffirmed in the Second Protocol.167

However, Article 6 of the Second Protocol provides that waiver on the basis of

‘imperative military necessity’ will only justify an attack on cultural property when

and for as long as: by its function it is a military objective; and there is no ‘feasible

alternative’ available to gain a similar military advantage. This decision can only be

made by an officer commanding a force the equivalent of a battalion or larger, or a

smaller force ‘where circumstances do not permit otherwise. Regardless, ‘an effective

advance warning’ should be given where possible in the circumstances.’ This strict

delimitation of ‘imperative military necessity’ overlaps substantially with the notion

of ‘military objective’ as defined by Additional Protocol I.168

Consequently, judicial

interpretations of military objective and loss immunity arising under Article 52(2) of

that protocol and equivalent provisions in the governing statutes of international



165 See Toman, supra note 1, at 74-79; O’Keefe, supra note 1, at 121-128. Within the Legal

Committee, the proposal to draft a provision along the lines of Art.11(1) was rejected. Instead, the

following minute was added regarding interpretation of Art.4: ‘The obligation to respect an item of

cultural property remains even if that item is used by the opposing Party for military purposes. The

obligation of respect is therefore only withdrawn in the event of imperative military necessity’:

CBC/DR/125, Records, at 221, para.1167.

166 Boylan, supra note 134, at 17, para.G.4.

167 Art.6, 1999 Second Protocol. The summary report of the Diplomatic Conference noted: ‘a few

States wanted significant changes to the description of cultural property, considering that the draft

weakened the provisions of the Hague Convention and was contrary to the provisions of the Additional

Protocol I of the Geneva Convention.’ Others had requested that the provision relating to loss of

general protection be reformulated to coincide with the Additional Protocol I, whilst other requested its

removal all together: supra note 139, at 2, paras.9 and 10.

168 O’Keefe, supra note 1 at 252-257. For state practice see Henckaerts and Doswald-Beck, supra

note 86, at vol.1, at 130 and 132 and vol.2, Part I, at 726, 730-745, 779-780, and 782-786.


36

criminal tribunals are relevant.169

Also, when launching an attack, a party must take

the following precautions (without prejudice to existing international humanitarian

law): feasible measures to ensure that the object to be attacked is not cultural property,

feasible measures concerning method and means of attack to avoid or minimise

incidental damage to cultural property, refrain from attacking where incidental

damage to such property would be disproportionate to the military advantage gained,

and cancel and suspend an attack when aware that the target is cultural property or

attack is excessive to military advantage gained.170

All Parties must not locate

movable heritage near military objectives (or otherwise provide in situ protection) and

remove military objective from the vicinity of immovable heritage.171

The remaining obligations contained within Article 4 of the Hague Convention

are not subject to the military necessity proviso. Consequently, High Contracting

Parties undertake to refrain from acts of reprisal against cultural property and to

prohibit, prevent and stop the theft, pillage and misappropriation of and any acts of

vandalism toward cultural heritage.172

The 1954 Hague Convention also elaborates upon the obligations arising

during belligerent occupation originally contained in the unrealised 1938 OIM draft

convention.173

The occupying power must cooperate with and support the competent

national authorities for the protection of cultural heritage. If it is necessary to take

measures to preserve the cultural heritage damaged by hostilities, and the competent

authorities are unable to undertake the work, then the occupying power shall take ‘the

most necessary measures of preservation’ with their cooperation, where possible. The

provision extends to informing insurgent groups of their obligation to respect cultural

169 See Prosecutor v. Pavle Strugar, Trial Judgment, Chamber II, ICTY, No.IT-01-42-T, (31

January 2005), para.295. See O’Keefe, supra note 1, at 125-132; Toman, supra note 1 at 389-390; and

Sandoz et al, supra note 44, at 648, ¶2079.

170 Art.7, 1999 Second Protocol.

171 Art.8, 1999 Second Protocol. This provision was modelled on Art.58 Additional Protocol I:

Summary Report, supra note 139, at 3, para.13.

172 The ICRC states that it is reflective of customary international law in respect of international

and non-international armed conflicts: Henckaerts and Doswald-Beck, supra note 86, at vol.1, at 132-

136 and vol.2, Part I, at 790-813.

173 Art.5, 1954 Hague Convention; and Arts 8 and 9, Regulations of the 1938 OIM draft

Convention.


37

property. The obligation is clarified further by Article 9 of the Second Protocol.174

It

encompasses obligations espoused in the 1956 UNESCO Recommendation on

International Principles Applicable to Archaeological Excavations.175

It provides that

the High Contracting Party must prevent and prohibit any illicit export, other removal

or transfer of ownership of cultural property;176

archaeological excavations except

when ‘strictly required to safeguard, record or preserve’ cultural property; and

changes to the cultural property intended to hide or destroy ‘cultural, historical or

scientific evidence’. Archaeological excavations or changes to cultural property in

occupied territory shall only (unless circumstances do not permit) be carried out in

close cooperation the competent national authorities of the occupied territory.

This protection afforded cultural heritage during occupation is augmented by

the First Protocol concerning the removal and return of movable heritage. It draws

upon the experience of the Allied Powers during and following the Second World

War, in particular the principles contained in the 1938 OIM draft Convention and

Declaration of the Allied Nations against Acts of Dispossession Committed in

Territories under Enemy Occupation or Control (1943 London Declaration).177

It

requires High Contracting Parties to prevent the export of cultural objects from

territory under their control (para.1). High Contracting Parties (even those not party to

the conflict) must take into their custody cultural property from occupied territory

which enters their territory immediately or upon request of the occupied territory’s

authorities (para.2). The property on their territory removed in contravention of

Article 1 shall be returned to the competent authorities of the territory immediately

upon cessation of the occupation (para.3). Cultural property must never be kept as war

174 The Greek delegation had unsuccessful tried to incorporate such an obligation in the

Convention proper in the 1950s during the original negotiations: Records, supra note 180, at

paras.1912-15.

175 Art.32, Part VI of the 1956 UNESCO Recommendation, in Records of the General

Conference, Ninth Session, New Delhi 1956: Resolutions, (1957), at 40.

176 Arts 11 and 12 of the Convention on the Means of Prohibiting and Preventing the Illicit

Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970, in force 24 April

1972, 823 UNTS 231; and reports of the Intergovernmental Committee for Promoting the Return of

Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation: for

example, GA Res.61/52 of 11 September 2006, UN Doc.A/RES/61/52.

177 5 January 1943, 8 Department of State Bulletin (1943) 21.


38

reparations (para.3).178

There is no time limit for lodging a claim for the return of such

cultural objects.179

The High Contracting Party obligated to prevent the exportation in

the first place shall pay an indemnity to the holder in good faith which is subsequently

returned (para.4). This provision is more limited than the post-1945 restitution scheme

because it does not extend to neutral third party States.180

In circumstances where

cultural property is deposited by a High Contracting Party in the custody of another

for safekeeping against hostilities shall be returned at the cessation to the competent

authorities of the territory (para.5). The initial inclusion of a draft provision covering

restitution in the convention proper proved highly contentious and was consequently

relegated to an optional protocol to placate certain states whom it was feared would

not otherwise sign up to the Convention.181

The obligations contained in the 1954 Protocol have largely been replicated in

Security Council resolutions concerning Iraq during the first Gulf War in 1990 and the

invasion in 2003 which provided for the taking into safekeeping and restitution of

cultural heritage removed from that country.182

They bound all UN Member States

and not only states parties to the First Protocol. Indeed, it sometimes led to the

passage of domestic laws stricter than the international obligations contained in the

Hague framework by countries not parties to these instruments.183

The 1954 Hague framework revived and absorbed the notion of special

protection for cultural property of ‘very great importance’ flagged by the OIM draft

Convention. The distinction made in the 1954 Hague Convention between general

178 For discussion of contrary Russian state practice: Henckaerts and Doswald-Beck, supra note

86, vol.I, at 137-138 in which it notes that these acts of removal occurred prior to the operation of the

First Protocol.

179 See UNESCO Doc.CL/717, Annex IV, 47; Nahlik, supra note 1,, at 147; and Prott, supra note

148.

180 See Intergovernmental Conference on the Protection of Cultural Property in the Event of

Armed Conflict — The Hague, 1954. Records of the Conference, (1961), paras.1630 and 1637.

181 Ibid., paras.1645-90 and 1750-56. See O’Keefe, supra note 1, at 196-201; Toman, supra note

1 at 333-356; O’Keefe, ‘The First Protocol of the Hague Convention Fifty Years On’, 9 Art Antiquity

and Law (2004) 99 at 113; and Prott, supra note 148, at 163-73.

182 SC Res.661, 6 August 1990, and SC Res.1483, 22 May 2003, para.7.

183 See, for example, Iraq (United Nations Sanctions) Order 2003 (UK), which shifted the burden

of proof from the prosecution to the defendant. He or she has prove to that they ‘did not know and had

no reason to suppose’ that the object was removed illegally from Iraq after the relevant date: Section

8(2) and (3).


39

protection (Chapter I) and special protection (Chapters II of Convention and

Regulations) is significant for the purposes of the prosecution of war crimes, that is,

grave breaches of international humanitarian law. However, the criteria laid down for

attracting special protection were so onerous that very few sites or properties were

listed. By 1999, only one site (the Vatican) and refuges nominated by the Netherlands,

Austria and the Federal Republic of Germany had been listed.184

The Second Protocol introduced another category of protection: enhanced

protection. Pursuant to Article 10, to attract such protection it must be: (a) cultural

heritage of the ‘greatest importance to humanity’;185

(b) protected adequately by an

national legal and administrative measures recognising its ‘exceptional cultural and

historic value and ensuring the highest level of protection’;186

and (c) not be used for

military purposes or as a shield of military sites and the Party controlling the property

must declare that it will not be used as such. The guarding of sites by armed

184 Summary Report, supra note 139, at 2, para.6; and Toman, supra note 1, at 108-109.

185 The draft Article had referred to its important to ‘all peoples’ but this was amended to

‘humanity’ to ‘emphasiz[e] the common interest in safeguarding important cultural heritage’: Summary

Report, supra note 139 at 4. The draft guidelines provide that when evaluating whether a property

satisfied these criteria it must evaluate its ‘exceptional cultural significance, and/or its uniqueness,

and/or if its destruction would lead to irretrievable loss for humanity’ (draft Guideline 32). Exceptional

cultural significance is determined by the following criteria:

− it is an exceptional cultural property bearing a testimony of one or more period of the development

of humankind at the national, regional or global level;

− it represents a masterpiece of human creativity;

− it bears an exceptional testimony to a cultural tradition or to a civilization which is living or which

has disappeared;

− it exhibits an important interchange of human achievements, over a span of time or within a

cultural area of the world on developments in arts and sciences;

− it has a central significance to the cultural identity of societies concerned.

Uniqueness is defined as there being no other ‘comparable cultural property that is of the same cultural

significance’ having regard to age, history, community, representativity, location, size and dimension,

shape and design, purity and authenticity in style, integrity, context, artistic craftsmanship, aesthetic

value and scientific value (draft Guideline 34). The criterion of ‘irretrievable loss for humanity’ is

satisfied when damage or loss ‘result[s] in the impoverishment of the cultural diversity or cultural

heritage of humankind’. Properties listed on the World Heritage List and Memory of the World

Register are presumed to satisfy these criteria.

186 The draft guidelines provide that the Committee must consider whether the national legal and

administrative measures adequately identify and safeguard the property, are covered in military

planning and training programmes, there are appropriate penal provisions, and (where appropriate)

marking with the 1954 Hague Convention emblem (para.39). Such measures will only be considered

adequate if effective in practice, that is, ‘based on a coherent system of protection and achieve the

expected results’ (para.41). Peace time provisions would also cover adequate protection against

negligence, decay or destruction.


40

custodians or police responsible for public order is deemed not to be a military

purpose.187

The Second Protocol establishes a committee which accepts nominations from

High Contracting Parties, non-governmental organisations and other parties, and

advises all Parties of the request.188

It can seek the advice of governmental and non-

governmental experts.189

The property may be listed even if it does not satisfy the

criteria provided the requesting Party has asked for international assistance.190

There

is also the possibility for the emergency granting of enhanced protection during

hostilities.191

The protection is afforded when the property is listed by the

Committee.192

The Committee is required to inform the UNESCO Director-General of

its decision, who in turn notifies the UN Secretary-General. The relevant cultural

property and its surroundings attract the immunity.193

The protection will be

terminated or suspended if it is a military objective;194

or cancelled or suspended by

the Committee when it no longer meets the criteria of Article 10,195

or its continuous

and serious use for the advancement of a military purpose.196


188 Art.11(1), (2) and (3), Second Protocol, and draft Guidelines 44 and 51.

189 Arts.11(6) and 27(3), Second Protocol, and draft Guidelines 24 and 51.

190 Art.11(8), Second Protocol, and draft Guideline 50.

191 Art.11(9), Second Protocol, and draft Guideline 63. Such requests must at a minimum:

identify the cultural property, provide a description, define its use with declaration that it is not used for

nor near vicinity of military objective; details of the responsible authorities; in the form required by the

UNESCO secretariat, and duly signed by the Party’s competent authority.

192 Art.12, Second Protocol.


194 Art.13(1)(b), Second Protocol.

195 Suspension being a provisional measure can only be ordered by the Committee if the

conditions contained in Art.10 are no longer fulfilled but may be at later date. This applies only to

conditions specified in Art.10(b) and (c) concerning adequate domestic measures and non-military use

respectively (draft Guideline 84). As cancellation is a definitive measure it is applied only when the

conditions contained in Art.10(a) are no longer met and cannot be met at a later date (draft Guideline

87).

196 Arts 12 and 14(2), Second Protocol. The Committee may suspend the enhanced protection if

the property or its immediate surroundings are used as a military objective (draft Guideline 85).

Cancellation may be ordered exceptionally where it is used in such a manner for six months or more

and ‘there is no evidence that the use will stop’ (draft Guideline 88). During the Diplomatic Conference,

some states proposed the closure of the loophole by making loss of protection arising only from use in

‘direct and indirect support of military operations’. Whilst the ICRC noted that Additional Protocol I

was no longer limited to ‘only a few unique objects: attack is now allowed only on military objectives,


41

Property ascribed enhance protection may be the object of attack if this is the

only feasible means of ceasing its use as a military objective, all feasible precautions

as to choice of means and method are taken to terminate such use and avoid or

minimise damage to it, and the attack can only be ordered at the highest operational

level of command, and effective advance warning and reasonable time is given to

opponent to stop such use.197

The last requirement may be discarded in circumstances

of self-defence.

Finally, the Second Hague Protocol elaborates upon the duty to prosecute

violations. This obligation predates the 1954 Hague Convention and is contained in

the 1907 Hague Regulations, referred to above.198

High Contracting Parties to the

Second Protocol must introduce domestic penal legislation (establishing jurisdiction

and appropriate penalties) concerning serious violations occurring within their

territory or perpetrated by nationals.199

Serious violations are defined as acts

committed intentionally and in violation of the Convention or Second Protocol,

namely, attacks on property under enhanced protection, using such property or its

immediate surroundings in support of military action, extensive destruction or

appropriation of cultural property covered by general protection, making such

property the object of attack, and theft, pillage or misappropriation of property under

general protection.200

Universal jurisdiction must be established for the first three of

these serious violations.201

If a Party does not prosecute, then it must extradited to a

country that can and which meets minimum standards in international law.202

Further,

all other objects being protected. The protection accorded to these significant items should therefore be

substantially higher than the general protection’: Summary Report, supra note 139 at 4, para.18.

197 Art.13(2), Second Protocol.

198 Art.28, 1954 Hague Convention. USSR had unsuccessfully proposed a provision which drew

inspiration from Article 146 of the 1949 Fourth Geneva Convention: Records, supra note 180,

CBC/DR/71, at 390.

199 Arts 15(2) and 16(1), Second Protocol.

200 Art.15(1), Second Protocol. The Summary Report of the Diplomatic Conference records

drafters intended this provision to be consistent with Art.85, Additional Protocol I and the Rome

Statute. However, serious concerns were raised about the initial draft particularly by the ICRC which

questioned the omission of intentional attacks and pillage as war crimes, supra note 139 at 6, para.26

and 27.

201 Art.16(1)(c), Second Protocol.

202 Arts 17 and 18, Second Protocol. It also provides for grounds for refusal of extradition

(political crimes or racial, religious etc motivations) and provision of mutual legal assistance: Arts 19

and 20.


42

a party may introduce legislative, administrative or disciplinary measures which

suppress the intentional use of cultural property in violation of the Convention or

Second Protocol, and illicit export, removal or transfer of ownership of cultural

property from occupied territory in violation of the Convention or Protocol.203

4. International criminal law and cultural heritage

In the year that the Geneva Conventions were adopted, UNESCO reopened the

question of a specialist instrument for the protection of cultural property during armed

conflict and belligerent occupation. An expert report prepared for the organisation by

Georges Berlia emphasized the importance of preventive and punitive measures.204

Preventive measures were encapsulated in the efforts like the 1938 OIM draft

Convention which included obligations arising during peacetime to minimise the

impact of hostilities. This approach was realised with the adoption of the Hague

framework. Equally important were the punitive measures identified by Berlia.

Written a few short years after the Nuremberg judgment, he made reference not only

to war crimes but extended his discussion to crimes against humanity and genocide.

Berlia’s early identification of the link between the international protection of

cultural heritage and these newly articulated international crimes is central to my

contention that the mid-twentieth century with the Nuremberg Judgment,205

and the

adoption of the Genocide Convention and the UDHR represented a shift in the

dynamics within the international community.206

The 1954 Hague Convention and all

international instruments for the protection of cultural heritage which follow it must

be understood within this context. It is a change encapsulated in the preamble of the

1954 Hague Convention. The rationale for the protection of cultural heritage is no

longer its universal importance to humanity because of the advancement of the arts

and sciences (though this important aim remains), rather it is more complex and


204 Berlia, supra note 27, at 12.

205 Affirmed by GA Res.95 (I), 11 December 1946. See also Principles of International Law

Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, UN GAOR

Supp. (No.12) at 11, UN Doc.A/1316 (1950); 1950 ILCYb 374, vol. II, and 44 AJIL (1950) 126.

206 Convention on the Prevention and Punishment of the Crime of Genocide, UNGA

Res.260A(III), 9 December 1948, in force 12 January 1951, 78 UNTS 277; and Universal Declaration

of Human Rights, GA Res.217A(III), 10 December 1948, and 43(supp.) AJIL (1949) 127.


43

relates to the significance of the heritage to peoples. This recalibration is reflected

more broadly in recent multilateral instruments for the protection of cultural

heritage,207

and human rights.208

This shift is best understood by looking at these individual international crimes

as they have been developed from the Hague Regulations to the present day and how

cultural heritage has been deployed in the prosecution of alleged perpetrators of these

crimes. In this final part, I examine the jurisprudence from the Nuremberg trials to the

work of the ICTY in respect of war crimes against cultural property, the crime against

humanity of persecution and finally, the crime of genocide.

A Violation of the laws and customs of war

The first efforts to put the obligation to prosecute violations of the laws and

customs of war relating to cultural heritage into practice occurred at the close of the

First World War. In early 1919, Sub Commission III on the Responsibilities of the

Authors of War and on Enforcement of Penalties for Violations of the Laws and

Customs of War established during the Preliminary Peace Conference in Versailles

had included ‘pillage’ and ‘wanton destruction of religious, charitable, educational,

and historic buildings and monuments’ on its list of war crimes to be investigated and

prosecuted.209

Thereby, in effect, pronouncing Articles 27, 28 and 56 of the Hague

Regulations customary international law. France requested the extradition of sixteen

persons from Germany to stand trial for violations pertaining to cultural property

during the war, but no prosecutions were realised.210

However, the 1919 list (prepared

207 See Convention concerning the Protection of the World Cultural and Natural Heritage, 16

November 1972, in force 17 December 1975, 1037 UNTS 151; Universal Declaration on Cultural

Diversity, 2 November 2001, UNESCO Doc.31C/Res.25, Annex I, 41 ILM (2002) 57; Convention for

the Safeguarding of the Intangible Cultural Heritage, 17 October 2003, in force 20 April 2006, 2368

UNTS 1; Declaration concerning the Intentional Destruction of Cultural Heritage, 17 October 2003,

UNESCO Doc.32C/Resolution 39; and Convention on the Protection and Promotion of the Diversity of

Cultural Expressions, 20 October 2005, in force 18 March 2007, in UNESCO, Records of the General

Conference, 33rd session, Paris, 3-21 October 2005, (2 vols, 2005), vol.I, at 83.

208 See Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and

Linguistic Minorities, GA Res.47/135, 18 December 1992, UN Doc.A/Res/47/135; 32 ILM (1993) 911;

and Declaration on the Rights of Indigenous Peoples.

209 Reproduced in 14 AJIL (1920) 95 at 114-115; and UNWCC, History of the United Nations

War Crimes Commission and the Development of the Law of War (1948), at 34.

210 J. Horne and A. Kramer, German Atrocities 1914. A History of Denial (2001), at 448.


44

by delegations which included Italy and Japan) was revisited during the lead-up to the

war crimes trials after 1944.

During the Second World War, the Allied Powers made successive

announcements stating that they would hold Axis nationals who had violated the laws

and customs of war to account at the end of the hostilities.211

The 1943 London

Declaration reiterated this warning and explicitly extended it to violations concerning

civilian property. Also, they advised such property would be subject to restitution

whether it was held by nationals of Axis or neutral states.212

The jurisdiction of the

International Military Tribunal (IMT) extended to violations of the laws and customs

of war including ‘plunder of public or private property, wanton destruction of cities,

towns or villages, or devastation not justified by military necessity.’213

The indictment of the major German war criminals at Nuremberg charged that

as part of their ‘plan of criminal exploitation’, they had ‘destroyed industrial cities,

cultural monuments, scientific institutions, and property of all types in the occupied

territories.’214

Alfred Rosenberg had headed ‘Einsatzstab Rosenberg’, a programme

which confiscated cultural objects from private German collections and occupied

territories to fill the regime’s own museums and institutions.215

The IMT found that he

had directed that the Hague Regulations ‘were not applicable to the Occupied Eastern

Territories’. It noted he was ‘responsible for a system of organised plunder of both

public and private property throughout the invaded countries of Europe.’216

Rosenberg

was found guilty of this and other counts of the indictment and sentenced to death.

There was little further jurisprudence on war crimes concerning cultural

property until the establishment of the International Criminal Tribunal for the former

211 See in particular, Declaration of the Four Nations on General Security (Moscow Declaration),

30 October 1943, 38(supp.) AJIL (1944) 7-8.

212 Third preambular paragraph, 1943 London Declaration.

213 Art.6(b) of the Charter of the International Military Tribunal, Nuremberg annexed to the

Agreement by United Kingdom, United States, France and USSR for the Prosecution and Punishment

of the Major War Criminals of the European Axis, 8 August 1945, 82 UNTS 279, and 39(supp.) AJIL

(1945) 257.

214 Count Three (War Crimes), Part E (Plunder of Public and Private Property), Indictment, in

Trial of the Major War Criminals, supra note 16, vol.1, at 11-30.

215 L. Nicholas, The Rape of Europa: The fate of Europe's treasures in the Third Reich and the

Second World War (1994).

216 Nuremberg Judgment, supra note 16, at 95-96, and 237ff.


45

Yugoslavia in 1993. From the earliest phases of the Yugoslav wars, the various parties

to the conflict deliberately targeted the cultural and religious property of the opposing

parties.217

Likewise, the international community under the auspices of the United

Nations quickly resolved to investigate and prosecute those responsible for these acts.

The adoption of the ICTY Statute by the international community during the progress

of the armed conflict was observed to have both punitive and deterrent aims.218

The articulation of the crimes relating to the confiscation and destruction of

cultural property in the ICTY Statute mimics Article 56 of the 1907 Hague

Regulations rather than the Hague framework, even though all belligerents were

Parties to the 1954 Convention and Protocol.219

Article 3(d) of the Statute includes

among the violations of the laws and customs of war:

[S]eizure, destruction or willful damage done to institutions dedicated to religion,

charity and education, the arts and sciences, historic monuments and works of art

and science.220

The ICTY has made clear that Article 3 is a catch-all provision which encompassed

customary international law.221

Under this provision, it must be shown that the

217 Report of the Secretary-General to the President of the UN Security Council, annexing the

Interim Report of the Commission of Experts Established Pursuant to SC Res.780(1992), UN

Doc.S/1993/25274 (9 February 1993) (concluded that grave breaches and other violations of

international humanitarian law had been committed in the territory of the former Yugoslavia including

the destruction of cultural and religious property); M. Kéba M’Baye, Final Report of the United

Nations Commission of Experts Established Pursuant to SC Res.780(1992), UN Doc.S/1994 674 (27

May 1994), Annex XI: Destruction of Cultural Property Report, pp. 66-68, para.285-97 (focused on

Dubrovnik and the Mostar Bridge and only touched on the systematic nature of the destruction and

damaging of cultural property); W. J. Fenwick, Annex XI.A: The Battle of Dubrovnik and the Law of

Armed Conflict; European Community Monitoring Mission, Cultural Heritage Report No.2, April 1995,

at 2.

218 Frulli, ‘Advancing the Protection of Cultural Property through the Implementation of

Individual Criminal Responsibility: The Case-Law of the International Criminal Tribunal for the

former Yugoslavia’, 15 Italian Yearbook of International Law (2005) 195, at 197.

219 Yugoslavia was a High Contracting Party to the 1954 Hague Convention and 1954 Hague

Protocol, and after its dissolution the successor states have become parties: Croatia (1992), Slovenia

(1992), Bosnia and Herzegovina (1993), Serbia (2001), and Montenegro (2007). Serbia (2002),

Slovenia (2004), Croatia (2006), and Montenegro (2007) are High Contracting Parties to the 1999

Second Protocol.

220 While Art.3(d) ICTY Statute refers to ‘seizure, destruction or damage’, the Rome Statute’s

equivalent provision (Art.8(2)(b)(ix) refers only to ‘attacks against’ such property not including works

of art.

221 Prosecutor v. Anto Furundžija, Trial Judgment, No.IT-95-17, (10 December 1998), para.133.

Article 3 was originally published as Annex to the Report of the Secretary-General Pursuant to

paragraph 2 of SC Res.808 (1993).


46

international or internal armed conflict existed and had a close nexus with the alleged

acts.222

This provision covering non-international armed conflict reflects

developments contained in the 1949 Geneva Conventions and 1954 Hague

Convention.

There have been a number of indictments brought under Article 3(d),

including Slobodan Milošević (‘Wilful destruction or wilful damage done to historic

monuments and institutions dedicated to education or religion’ in violation of the laws

or customs of war).223

The most significant cases on this count pertain to the

bombardment of the fortified city of Dubrovnik in early October 1991.224

The leading

cases involved Miodrag Jokić, a commander of the Yugoslav People’s Army and

responsible for the forces which attacked Dubrovnik on 6 October 1991, and Pavle

Strugar, his superior found to have ‘legal and effective control’ over the forces in the

area during the relevant period, and Vladimir Kovačević.225

Several indictments issued by the ICTY reflect the overlap between this

provision and protection afforded civilian objects generally in international

humanitarian law.226

The tribunal has affirmed that civilian objects enjoy a ‘similar

level of protection as a civilian population.’227

The ICTY has repeatedly held that

although acts under Article 3(d) overlap to a certain extent with the offence of

unlawful attacks on civilian objects under Article 3(b). However, when the acts are

222 Strugar Rule 98bis Motion, para.24; and Prosecutor v. Duško Tadić, Appeal Judgment, No.IT-

94-1-A, Appeals Chamber, ICTY, (2 October 1995), paras.66-70.

223 Milošević Amended Indictment ‘Bosnia and Herzegovina’ (22 November 2002), Count 21;

and Second Amended Indictment ‘Croatia’ (28 July 2004), Count 19, Case No.IT-02-54-T. There being

an overlap between the counts under Articles 3(b) and 3(d) of the ICTY Statute.

224 For detailed treatment see C. Bories, Les bombardements serbes sur la vieille ville de

Dubrovnik: La protection internationale des biens culturels (2005).

225 The matter of Prosecutor v. Vladimir Kovačević, Case No.IT-01-42-2 was ordered by the

ICTY to be transferred to and tried by the Republic of Serbia on 17 November 2006.

226 Strugar Third Amended Indictment ‘Dubrovnik’ (10 December 2003), Counts 4, 5 and 6, Case

No.IT-02-42-PT; and Jokić Second Amended Indictment ‘Dubrovnik’ (27 August 2003), Counts 4, 5

and 6, Case No.IT-01-42.

227 Prosecutor v. Pavle Strugar, Rule 98bis Motion, No.IT-01-42-T, Trial Chamber II, ICTY, (21

June 2004), para.62.


47

specifically directed at the ‘cultural heritage of a certain population’, Article 3(d) is

lex specialis.228

In Kordić and Čerkez, the Trial Chamber confirmed that the prohibition

contained in Article 3(d) in respect of ‘institutions dedicated to religion’, in particular,

is customary international law.229

In that case, the defendants, who were Bosnian

Croats were found guilty of violations of the laws and customs of war arising from

deliberate armed attacks against historic mosques in Bosnia and Herzegovina. The

tribunal supported its finding of customary international law with reference to Article

27 of the 1907 Hague Regulations, Article 53 of 1977 Additional Protocol I and

Article 1 of the 1954 Hague Convention.230

When determining which property falls within the protection afforded under

Article 3(d), the tribunal has referenced definitions contained in conventions covering

both during armed conflict and peacetime including the Roerich Pact,231

and 1972

World Heritage Convention. In Strugar, the Trial Chamber placed significant weight

on the Old Town’s inscription on the World Heritage List. It observed that the List

includes ‘cultural and natural properties deemed to be of outstanding universal value

from the point of view of history, art or science’ and a reasonable trier of fact could

conclude that it come within the meaning of cultural property covered by Article

3(d).232

In respect of the actus reus (requisite material) element of this war crime, the

tribunal has considered customary law concerning attacks on cultural property. Early

in the life of the tribunal, the Trial Chamber in Blaškić took a restrictive view finding

that they should not have been used for military purposes at the time of the acts nor

228 Strugar Rule 98bis Motion.; Prosecutor v. Miodrag Jokić, Trial Judgment, No.IT-01-42/1-S,

Trial Chamber I, ICTY, (18 March 2004), para.46; Dario Kordić and Mario Čerdez, Trial Judgment,

No.IT-95-14/2-T, (26 February 2001), paras.36 and 360. Cf. Prosecutor v. Dario Kordić and Mario

Cerdez, Appeal Judgment, Case No.IT-95-14/2-A, (17 December 2004), paras.89-92 concerning

educational institutions.

229 Kordić and Čerdez, Trial Judgment, para.206.

230 Ibid., at 359-362. See also Jokić, Trial Judgment, para.48.

231 Kordić and Čerkez, Judgment, para.361.

232 Strugar Rule 98bis Motion, paras.80-81, and Jokić, Trial Judgment, paras.49 and 51.


48

located in the ‘immediate vicinity of military objectives.’233

It moved away from this

interpretation in Strugar, where it rejected the notion that it must not be in the

immediate vicinity of military objectives at the time of the attack or that this would

justify an attack. The tribunal emphasised that it was the cultural property’s use rather

than location which was determinative of loss of immunity.234

Furthermore, the ICTY

found it was presumed to enjoy the same general protection afforded to civilian

objects, except where they had become military objectives because of ‘their nature,

location, purpose or use make an effective contribution to military action and whose

total or partial destruction, capture, or neutralisation, in the circumstances ruling at the

time, offers a definite military advantage.’235

In respect of the mens rea requirement of this crime, it must be shown that the

defendant committed the acted wilfully, that is, deliberately or with reckless disregard

for the substantial likelihood of the destruction or damage of a protected cultural or

religious property.236

The perpetrator must act with the knowledge that the object is

cultural property. For example, in Strugar this was evidenced by that fact that

Dubrovnik was included on the World Heritage List, whilst in Jokić the tribunal noted

that the 1954 Hague emblem was clearly visible.237

In respect of sentencing for war crimes against cultural property, the tribunal

has stated that ‘this crime represents a violation of values especially protected by the

international community.’238

In Jokić, the Trial Chamber found that the attack on

Dubrovnik was exacerbated because it was a ‘living city’ and ‘the existence of the

233 Prosecutor v. Tihomir Blaškić, Trial Judgment, No.IT-1995-14-T, Trial Chamber, ICTY (3

March 2000), para.185.

234 Prosecutor v. Pavle Strugar, Trial Judgment, Chamber II, ICTY, No.IT-01-42-T, (31 January

2005), para.310. Cf. O’Keefe, supra note 1, at 321-322 arguing that this customary international

provides that it is not solely use but nature, location and purpose of cultural property which may render

it a military objective.

235 Prosecutor v. Radoslav Brđanin, Trial Judgment, Case No.IT-99-36-T, Trial Chamber II,

ICTY, (1 September 2004), para.596. The court also noted even non-state parties to Additional

Protocol I, including the United States, Turkey and India, recognised the customary law nature of

Art.52(2) Additional Protocol I during the diplomatic conference called for the Second Hague Protocol

in 1999: ibid., at footnote 1509.

236 Ibid., at para.599; and Prosecutor v. Pavle Strugar, Appeals Judgment, No.IT-01-42-A,

Appeals Chamber, ICTY, (17 July 2008), paras.277-278.

237 Prosecutor v. Miodrag Jokić, Trial Judgment, No.IT-01-42/1-S, Trial Chamber I, ICTY, (18

March 2004), paras.23 and 49; and Strugar, Trial Judgment, paras.22, 183, 279, 327 and 329.

238 Jokić, Trial Judgment, para.46.


49

population was intimately intertwined with its ancient heritage.’239

It held that while

‘it is a serious violation of international humanitarian law to attack civilian buildings,

it is a crime of even greater seriousness to direct an attack on an especially protected

site.’240

A site once destroyed could not be returned to its original status.241

Taking

into account Jokić’s remorse he was sentenced to seven years imprisonment,242

whilst

Strugar was given eight years.243

B Crime against humanity of persecution

The prohibition of crimes against humanity in international law stretches back

to the early twentieth century and the investigation by the 1919 Commission of

offences committed by Germany and her allies against their own nationals,

particularly in Turkey and Austria.244

Dissent from the United States meant no

provision for the prosecution of these acts was incorporated in the peace treaty with

Austria.245

However, under Article 230 of its peace treaty with Allied Powers (Treaty

of Sèvres), Turkey was obliged to recognize and cooperate with any tribunal

appointed by the Allies to prosecute alleged perpetrators, by providing relevant

information and surrendering persons ‘responsible for the massacres committed

during the continuance of the state of war on the territories which formed part of the

Turkish Empire on 1st August 1914.’

246 There was also provision made for the

restitution of property removed from these communities.247

Significantly, whilst these

239 Ibid., para.51.

240 Ibid., para.53.

241 Ibid., para.52.

242 Confirmed on appeal: Prosecutor v. Miodrag Jokić, Judgment on Sentencing Appeal, No.IT-

01-42/1-A, Appeals Chamber, ICTY (30 August 2005).

243 This sentence was reduced on appeal to seven and a half years imprisonment: Strugar, Appeals

Judgment, and pardoned by Decision of the President on the application for pardon or commutation of

sentence of Pavle Strugar, No.IT-01-42-ES (16 January 2009).

244 1919 Commission Report, supra note 209, at 114-115 and 122. Egon Schwelb later noted that

most of the charges listed by the commission referred to the persecution of Armenian and Greek

minorities by Turkish authorities: Schwelb, ‘Crimes Against Humanity’, 23 BYbIL (1946) 178, at 181.

245 1919 Commission Report, ibid., at 14; and ‘Memorandum of Reservations Presented by the

Representatives of the United States to the Report of the Commission on Responsibilities’, Annex II, 4

April 1919, 14 AJIL (1920) 127, at 134.

246 Treaty of Peace with Turkey, 10 August 1920, not ratified, Cmd 964 (1920), British and

Foreign State Papers, vol.113, at 652, and 15(supp.) AJIL (1921)179.

247 Art.144, Treaty of Peace with Turkey.


50

acts occurred within the context of an international armed conflict, the provision

targeted the acts of a state against its own nationals. However, British attempts to try

the perpetrators before an international tribunal and Turkish endeavours in national

courts met with limited success.248

As noted earlier, during the Second World War the Allied Powers, warned that

perpetrators of atrocities against civilians and civilian property that they would be

held to account. Many atrocities of the Axis forces went beyond the established time

and space parameters of existing international humanitarian law as defined by the

Hague Regulations. They had occurred prior to the commencement of war and were

often perpetrated by states against their own nationals within their own territory. Early

Allied declarations concerning the punishment of these acts were tightly bound to the

constraints of the Hague Conventions and made no reference to such acts. However,

gradually it was accepted that the remit of the Nuremberg tribunal would not confine

itself to the violation of the laws and customs of war committed against Allied

combatants or occupied civilians, that is, war crimes. Rather, it was extended to

include acts perpetrated against civilians that were stateless or Axis citizens on Axis

territory.

This seminal leap in international law was encapsulated in Article 6(c) of the

London Charter which extended the International Military Tribunal’s jurisdiction to

encompass crimes against humanity including ‘persecutions on political, racial or

religious grounds in execution of or in connection with any crime within the

jurisdiction of the Tribunal, whether or not in violation of the domestic law of the

country where perpetrated.’ Count Four of the Nuremberg Indictment detailed how

‘Jews [were] systematically persecuted since 1933 … from Germany and from the

occupied Western Countries were sent to the Eastern Countries for extermination.’249

The IMT held that confiscation and destruction of religious and cultural institutions

and objects of Jewish communities amounted to persecution that was a crime against

humanity.250

The Allied Powers later remedied the drafting error for subsequent trials,

that had led to the IMT to restrict its findings to acts committed during or in

248 Hughes, ‘Recent Questions and Negotiations’, 18 AJIL (1924) 229, at 237.

249 Ibid.

250 Nuremberg Judgment, supra note 16, at 243-247.


51

connection with the war.251

Despite this significant limitation, the prosecution of

crimes against humanity without reference to ‘time and place and national

sovereignty’ heightened the Nuremberg Charter’s importance for the promotion of

international human rights.252

Alfred Rosenberg was found guilty of crimes against humanity including the

plunder in 1941 of Jewish homes in western Europe through his ‘Einsatzstab

Rosenberg’. The tribunal also held that as supreme authority in the Occupied Eastern

Territories from mid-1941, he was instrumental in the persecution of the Jews and

opponents of the Nazi regime.253

Julius Streicher, who was not a member of the

military, was found guilty on Count Four for his incitement of the persecution and

extermination of Jews through propaganda including as publisher of the anti-Semitic

newspaper, Der Stürmer. He was also found to have been responsible for the

destruction of the Nuremberg synagogue in 1938.254

Later, the District Court of

Jerusalem found Adolf Eichmann guilty of crimes against humanity (and war crimes)

arising from among other things the destruction of synagogues and other religious

institutions which amounted to persecution.255

The international and hybrid criminal tribunals established under the auspices

of the United Nations since the 1990s have invariably extended jurisdiction to the

crimes against humanity of persecution.256

The establishment of the ICTY a half

251 See Robinson, ‘The International Military Tribunal and the Holocaust: Some Legal

Reflections’, 7 Israel Law Review (1972), 1 at 7-12; and Article II(1)(c), Control Council Law No.10,

Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, 20

December 1945, Official Gazette of the Control Council of Germany, No.3, 31 January 1946, at 50-5.

252 Schwelb, supra note 245.

253 Nuremberg Judgment, supra note 16, at 287-288.

254 Nuremberg Judgment, supra note 16, at 294-295. See also Von Schirach, ibid. at 310-311

found guilty of Count Four. Cf. Flick and Farben decided by the US Military Tribunal pursuant to

Control Council Law No.10 where it held that acts against property did not constitute crimes against

humanity: UNWCC, Law Reports of Trials of War Criminals, (15 vols, 1947-49), vol.VI, at 1215-1216,

and vol.VIII, Part 2, at 1123-1133.

255 Attorney-General of the Government of Israel v. Adolf Eichmann, 361 ILR 5 (Dist. Ct. of

Jerusalem, 1961), para.57.

256 Art.3(h) ICTR Statute; Art.7(1)(h) (Persecution against any identifiable group or collectivity

on political, racial, national, ethnic, cultural, religious, gender as identified in paragraph 3, or other

grounds universally recognised as impermissible under international law, in connection with any act,

referred to in this paragraph or any other crime within the jurisdiction of the Court) and 2(g) defines

‘Persecution’ as ‘intentional and severe deprivation of fundamental rights contrary to international law

by reason of the identity of the group or collectivity’, Rome Statute, Art.2(h) Statute of the Special

Court for Sierra Leone; Art.9 Statute of the Special Court for Cambodia; Art.3 (Religious Persecution)


52

century after Nuremberg reopened the question of persecution as it related to cultural

heritage. During the first years of the Yugoslav conflicts, the International Law

Commission in its 1991 Report on the Draft Code of Crimes Against Peace and

Security related persecution on social, political, religious or cultural grounds to

‘human rights violations … committed in a systematic manner or on a mass scale by

government officials or by groups that exercise de facto power over a particular

territory …’.257

The ILC noted that the systematic destruction of monuments,

buildings and sites of highly symbolic value for a specific social, religious or cultural

group amounted to persecution.258

Moreover, this definition extended to intangible

elements of heritage including the suppression of language, religious practices, and

detention of community or religious leaders.

Under the ICTY Statute, crimes against humanity are covered by Article 5.

This provision does not list acts against cultural property or civilian property per se

nor does it define ‘persecution’. However, the ICTY has held that the destruction or

damaging of the institutions of a particular political, racial or religious group is clearly

a crime against humanity of persecution under Article 5(h).259

Referring to its own

earlier jurisprudence, the Nuremberg Judgment and the 1991 ILC Report, the Trial

Chamber in Kordić and Čerkez expounded that:

This act, when perpetrated with the requisite discriminatory intent, amounts to an

attack on the very religious identity of a people. As such, it manifests a nearly pure

expression of the notion of ‘crimes against humanity’, for all humanity is indeed

injured by the destruction of a unique religious culture and its concomitant

cultural objects.260

The ICTY has stated that the attacks must be directed against a civilian population, be

widespread or systematic, and perpetrated on discriminatory grounds for damage

and Art.5 (Crimes Against Humanity including persecution), Law on the Establishment of Cambodian

Extraordinary Chambers.

257 Report of the International Law Commission on the Work of its Forty-Third Session, UN

Doc.A/46/10/suppl.10 (1991), at 268.

258 Ibid.

259 Kordić and Čerkez, Trial Judgment, para.207.

260 Ibid., paras.206 and 207.


53

inflicted to cultural property to qualify as persecution.261

This requirement is intended

to ensure that crimes of a collective nature are penalised because a person is

‘victimised not because of his individual attributes but rather because of his

membership of a targeted civilian population.’262

Similarly, cultural property is

protected not for its own sake, but because it represents a particular group. While it is

now generally accepted that the crimes of humanity, including acts of persecution, do

not need to take place during armed conflict, it is a requirement under Article 5 of the

ICTY Statute. The tribunal must find a nexus with the international or internal armed

conflict in order to have jurisdiction.263

The Lašva Valley cases with the defendants Tihomir Blaškić, Dario Kordić

and Mario Čerkez serve to underscore the ICTY’s jurisprudence concerning acts

against cultural property being defined as the crime against humanity of persecution.

From November 1991 to March 1994, the primary political party in Croatia at the

time, the Croatian Democratic Union (HDZ) espoused the right of secession of the

‘Croatian nation inside its historical and natural borders’. The Croatian Democratic

Union of Bosnia and Herzegovina (HDZ-BiH) was the main Bosnian Croatian party

and it had an identical platform. In November 1991, the Croatian Community of

Herceg-Bosnia proclaimed its right to exist separately in the territory of Bosnia and

Herzegovina. The Croatian Defence Council (HVO) was the Community’s supreme

executive, administrative and defence authority. These groups, with their military and

police forces, organised and executed a campaign of persecution and ethnic cleansing,

which included targeting Bosnian Muslim civilians, their property and cultural

heritage in the Lašva Valley.

In respect of the material element or actus reus of persecution under Article

5(h) of the ICTY Statute, the tribunal has found that it encompasses crimes against

persons and crimes against property as long as it is accompanied by the requisite

261 Prosecutor v. Zoran Kupreškić et al, Trial Judgment, Case No.IT-95-16-T, Trial Chamber,

ICTY, (14 January 2000), para.544; and Prosecutor v. Tihomir Blaškić, Trial Judgment, Case No.IT-

95-14-T, Trial Chamber, ICTY, (30 March 2000), para.207.

262 Prosecutor v. Duško Tadić, Opinion Trial Judgment, No.IT-94-1-T, Trial Chamber, ICTY, (7

May 1997), at para.644.

263 Blaškić, Trial Judgment, paras.66 and 227; Tadić, Appeal Judgment, para.249, and Prosecutor

v. Radislav Krstić, Trial Judgment, Case No.IT-98-33, Trial Chamber, ICTY (2 August 2001), para.480.


54

intent.264

Under this provision, the tribunal has dealt with crimes against property in

general and those specifically directed at cultural property. It has held that

comprehensive destruction of homes and property may cause forced transfer or

deportation and, if done discriminatorily, constitutes ‘the destruction of the livelihood

of a certain population’ and therefore, persecution.265

In Blaškić, the Trial Chamber

convicted the defendant of the persecution which took ‘the form of confiscation or

destruction’ by Bosnian Croat forces of ‘symbolic buildings … belonging to the

Muslim population of Bosnia-Herzegovina.’266

It found that ‘the methods of attack

and the scale of the crimes committed against the Muslim population or the edifices

symbolizing their culture sufficed to establish beyond reasonable doubt that the attack

was aimed at the Muslim civilian population.’267

Further, the ICTY has held that vital element of crimes under Article 5 is that

they are part of ‘a widespread or systematic attack against a civilian population.’268

Acts should not be examined in isolation but in terms of their cumulative effect.269

However, they do not need to be part of a pre-existing criminal policy or plan.270

While the tribunal acknowledged that this element of the test may exclude certain acts

against property of a group from the realm of criminal persecution, it has affirmed that

destruction of cultural property, even a single act, with the requisite discriminatory

intent may constitute persecution.271

Further, it has emphasised the need that it be

directed against ‘civilian populations.’272

264 Blaškić, Trial Judgment, para.233.

265 Kupreškić et al, Trial Judgment, para.631 (involving the massacre and destruction of homes in

Ahmići).

266 Blaškić, Trial Judgment, paras.227-228.

267 Ibid., at para.425.

268 Krstić, Trial Judgment, para.535.

269 Kupreškić et al, Trial Judgment, para.615.

270 Blaškić, Appeal Judgment, para.120; and Prosecutor v. Dragoljub Kunarac et al, Appeal

Judgment, Case No.IT-96-23, Appeals Chamber, ICTY (12 June 2002), at para.98.

271 Kordić and Čerkez, Trial Judgment, paras.196, 199, 205 and 207.

272 Kunarac et al, Appeal Judgment, paras.78, 87, and 90-92; Prosecutor v. Tihomir Blaškić,

Appeals Judgment, Case No.IT-95-14-A, Appeals Chamber, ICTY, (29 July 2004), at paras.103-116;

and Prosecutor v. Milan Martić, Appeals Judgment, Case No.IT-95-11-A, Appeals Chamber, ICTY, (8

October 2008), paras.310-314.


55

The Trial Chamber found that an act must reach the same level of gravity as

the other crimes against humanity enumerated in Article 5. However, it has added that

persecutory acts are not limited to acts listed in Article 5 or elsewhere in the ICTY

Statute, ‘but also include the denial of other fundamental human rights, provided they

are of equal gravity or severity.’273

The Appeals Chamber in Blaškić found that

committing an act with the requisite intent is not sufficient, the act itself must

‘constitute the denial or infringement upon a fundamental right laid down in

customary international law.’274

In Kupreškić, Trial Chamber stated: ‘[A]lthough the

realm of human rights is dynamic and expansive, not every denial of a human right

may constitute a crime against humanity.’275

The test will only be met when there is a

gross violation of a fundamental right.276

Persecution requires a specific additional mens rea element over and above

that needed for other crimes against humanity, namely a discriminatory intent ‘on

political, racial or religious’ grounds’ (not necessarily cultural).277

Although the actus

reus of persecution may be identical to other crimes against humanity it was

distinguishable because it was committed on discriminatory grounds. The ICTY has

pointed out that persecution may be ‘acts rendered serious not by their apparent

cruelty but by the discrimination they seek to instil within humankind.’278

There is no

additional requirement of ‘persecutory intent’.279

It noted that the intent to

discriminate need not be the primary intent but a significant one.280

In addition, this

discriminatory intent must be combined with knowledge of an attack on civilians and

that the act forms part of that attack.281

273 Krstić, Trial Judgment, para.535; and Prosecutor v. Radoslav Brđanin, Appeals Judgment,

Appeals Chamber, ICTY, (3 April 2007), paras.296-297.

274 Prosecutor v. Tihomir Blaškić, Appeals Judgment, Case No.IT-95-14-A, Appeals Chamber,

ICTY, (29 July 2004), para.139.

275 Kupreškić et al, Trial Judgment, para.618.


277 Blaškić, Trial Judgment, para.283; Krstić, Trial Judgment, para.480; and Kordić and Čerkez,

Trial Judgment, paras.211 and 212.

278 Blaškić, Trial Judgment, para.227.

279 Blaškić, Appeals Judgment, para.165.

280 Kupreškić, Trial Judgment, paras.431, 607, and 625.

281 Blaškić, Appeals Judgment, paras.121-128.


56

The severity of sentences handed down to persons convicted under this count

compared to war crimes illustrates the gravity with which it is held by the tribunal.

For example, the Trial Chamber sentenced Tihomir Blaškić to 45 years imprisonment

after he was found guilty of crimes against humanity (and Article 3(d)) which

included the destruction and plunder of property and, in particular, of institutions

dedicated to religion and education;282

while Dario Kordić received 25 years which

was upheld on appeal and Mario Čerkez received fifteen years imprisonment reduced

to six years on appeal.283

Several indictments brought before the ICTY for the wanton destruction or

damage of cultural property related to religious or ethnic groups included charges of

persecution and genocide. However, while such acts have been used to establish the

mens rea of a defendant, that is, the discriminatory intent required for proving

genocide and persecution. The targeting of cultural property may amount to actus reus

in respect of the crime of persecution, but as explained below, the tribunal has not

include such acts within the definition of genocide under Article 4 of the ICTY

Statute.

C Genocide

Cultural heritage has been intimately connected to the prosecution of the crime

of genocide in the international law since it was first articulated in the 1940s.

However, that relationship has been fraught and remains contentious. The reasons are

complex and perennial. In this section, I examine the contestations concerning the

‘cultural’ elements of genocide during the negotiation of the 1948 Genocide

Convention, and then I consider how the evidence of the destruction or damage of

cultural property of the targeted group has played a vital role in establishing

individual criminal responsibility for genocide before the ICTY and state

responsibility in the 2007 decision of the International Court of Justice in Application

282 Blaškić’s sentence was substituted on appeal to nine years: Prosecutor v. Tihomir Blaškić,

Appeal Judgment, Case No.IT-95-14-A, Appeals Chamber, ICTY, (29 July 2004).

283 Prosecutor v. Dario Kordić and Mario Čerkez, Appeal Judgment, Case No.IT-95-14/2,

Appeals Chamber, ICTY (17 December 2004).


57

of the Convention on the Prevention and Punishment of the Crime of Genocide

(Genocide case).284

1. Nuremberg, 1948 Genocide Convention and cultural genocide

The articulation of the crime of genocide in the mid-twentieth century evolved

from existing international humanitarian law. Many acts perpetrated by the

Nuremberg defendants as part of their genocidal programme had been outlawed by

international law as evidenced by their inclusion on the 1919 List like

denationalisation, pillage, confiscation of property, wanton destruction of religious,

charitable, educational and historic buildings and monuments.285

The United Nations’

War Crimes Commission (UNWCC) maintained that crimes like ‘denationalisation’

were not legal, even if they were not specifically enumerated in the various Hague

Conventions.286

It pointed to the preamble of the 1907 Hague IV Convention which

stipulates that if an act is not covered by the Convention, it must be considered in the

light of principles derived from ‘the laws of humanity and dictated by public

conscience’.287

The term ‘genocide’ was only coined by Raphael Lemkin in 1943.288

The

UNWCC’s earliest response to genocide, following Lemkin’s lobbying, was the re-

articulation of the ‘denationalisation of inhabitants of occupied territory’.289

To this

end, the UNWCC’s Committee III(Legal) focused on provisions like Articles 27 and

56 of the Hague Regulations. It employed an expansive interpretation of Article 56,290

284 Bosnia and Herzegovina v. Serbia and Montenegro, ICJ, Judgment of 26 February 2007, at

<http://www.icj-cij.org/docket/files/91/13685.pdf> (viewed 21 January 2009).

285 1919 Commission Report, supra note 209, at 114-115; and C.149, 4 October 1945, para.6,

6/34/PAG-3/1.1.0, United Nations War Crimes Commission 1943-1949, Predecessor Archives Group,

United Nations Archives, New York (UNWCC Archive).

286 C.148, 28 September 1945, 2-3, 6/34/PAG-3/1.1.0, UNWCC Archive.

287 Eighth recital, Preamble, 1907 Hague IV Convention; and B. Ećer, Scope of the Retributive

Action of the United Nations according to their Official Declarations, III/4, 27 April 1944, 6, box 9,

reel 36, PAG-3/1.1.3, UNWCC Archive.

288 R. Lemkin, Axis Rule in Occupied Europe. Laws of Occupation, Analysis of Government,

Proposals for Redress (1944), Chapter 9.

289 See Notes of Committee III meeting, 9 October 1945, box 5, reel 34, PAG-3/1.0.2, UNWCC.

290 See E. Schwelb, Note on the Criminality of ‘Attempts to Denationalise the Inhabitants of

Occupied Territory’, III/15, 10 September 1945, para.11; and Draft Report Committee III on the

Criminality of ‘Attempts to Denationalise the Inhabitants of Occupied Territory’, III/17, 24 September

1945, paras.8 and 9, box 9, reel 36, PAG-3/1.1.3, UNWCC Archive.


58

by suggesting that the ‘rationale’ for this provision was the protection of spiritual

values and intellectual life related to such institutions and objects.291

Furthermore, the

deliberate removal or destruction of cultural objects from the group was viewed as a

fundamental component of this international crime.292

When these provisions were

interpreted in the spirit of the preamble of the Hague Convention, Committee III

unanimously agreed that ‘denationalisation’ was forbidden by international law.293

Committee III defined ‘denationalisation’ as a crime driven by policies adopted by an

occupying power for the purpose of ‘disrupting and disintegrating the national

conscience, spiritual life and national individuality’.294

Noting that it was committed

not against individuals but against the group.295

Lemkin argued that while the various acts often perpetrated to achieve a

genocidal purpose were largely outlawed by international law, there was a need to

recognise the heinousness of the acts which he termed ‘genocide’, that is, the aim to

destroy the physical and cultural elements of targeted groups. For this reason, it was

more than simply mass murder because it resulted in ‘the specific losses of

civilization in the form of the cultural contributions which can only be made by

groups of people united through national, racial or cultural characteristics.’296

The word genocide did not appear in the London Charter establishing the

jurisdiction of the International Military Tribunal. However, Count Four of the

indictment of the major war criminals, based on Article 6(c) of the Charter, charged

them with ‘deliberate and systematic genocide, viz., the extermination of racial and

national groups, against civilian populations of certain occupied territories in order to

destroy particular races and classes of people, and national, racial or religious

291 C.149, 4 October 1945, para.8, 6/34/PAG-3/1.1.0.

292 Including the deportation of children to the occupier’s State to educate them; the interference

in occupied people’s religious traditions; removal of national symbols and names; compulsory or

automatic granting of citizenship of the occupier; and colonisation of the occupied territory by

nationals of the occupier: III/17, 24 September 1945, para.6, 9/36/PAG-3/1.1.3, UNWCC Archive.

293 III/17, 24 September 1945, para.8, 9/36/PAG-3/1.1.3.

294 Report Sub-Committee, 2 December 1942, C.1, and Preliminary Report Chairman of

Committee III, 28 September 1945, C.148, 2, box 6, reel 34, PAG-3/1.1.0, UNWCC Archive.

295 See Criminality of Attempts to Denationalise the Inhabitants of Occupied Territory, 4 October

1945, C.149, para.6, box 6, reel 34, PAG-3/1.1.0, UNWCC Archive.

296 Lemkin, supra note 288, at 84.


59

groups …’.297

However, the term ‘genocide’ was not explicitly used in the Nuremberg

Judgment. Lemkin conceded that the method by which the crime was incorporated

into the indictment, via the count on crimes against humanity, proved problematic.298

He noted that whilst genocide usually occurred under the guise of armed conflict, any

definition should not differentiate between acts taking place during peace or war

time.299

Lemkin’s broader notion of genocide, which included cultural elements, was

affirmed by the second wave of prosecutions pursued under Control Council Law

No.10, which did not require a nexus to be made between crimes against humanity

and an armed conflict. The indictment in the case of Ulrich Greifelt and Ors, before

the US Military Tribunal at Nuremberg, covered the ‘systematic program of genocide,

aimed at the destruction of foreign nations and ethnic groups, in part by murderous

extermination, and in part by the elimination and suppression of national

characteristics.’300

Likewise, in the Artur Grieser case, the Supreme National Tribunal

of Poland using the term for the first time in a judgment denouncing ‘physical and

spiritual genocide’ and attacks on smaller nations’ right to exist and have ‘an identity

and culture of their own.’301

The same court in the Amon Leopold Goeth case stated

that ‘the wholesale extermination of Jews and … Poles had all the characteristics of

genocide in the biological meaning of this term, and embraced in addition, the

destruction of the cultural life of these nations.’302

Two months after the Nuremberg judgment, the UN General Assembly on 11

December 1946 unanimously adopted the Resolution on the Crime of Genocide

(Genocide Resolution).303

The resolution augmented the view that genocide was a

297 Nuremberg Indictment, in Trial Proceedings, supra note 18, vol.1, at 11-30.

298 Lemkin, ‘Genocide as a Crime under International Law’, 41 AJIL (1947) 145, at 148.

299 Lemkin, supra note 288, at 93.

300 U.S. v. Greifelt and others (US Military Tribunal, Nuremberg), 13 LRTWC (1949) 1, at 36-42,

and 15 Annual Digest (1948) 653, at 654.

301 Poland v. Greiser (Supreme National Tribunal of Poland) 13 LRTWC (1949) 70 at 114, and

105, and 13 Annual Digest (1946) 387, at 389. The offences for which he was indicted included:

‘Systematic destruction of Polish culture, robbery of Polish cultural treasures and germanization of the

Polish country and population, and illegal seizure of public property’ (Ibid., 71).

302 Poland v. Goeth (Supreme National Tribunal of Poland), 7 LRTWC (1946) 4, at 9, and 13

Annual Digest (1946) 268.

303 GA Res.96(I), 11 December 1946, YBUN (1946-47), at 255.


60

crime in international law before the Genocide Convention.304

In its advisory opinion

on Reservations to the Convention on Genocide, the ICJ found that the Convention

encapsulated ‘principles which are recognized by civilized nations as binding on

States, even without any conventional obligations.’305

The Genocide Resolution states that genocide ‘is a crime under international

law’, independent of crimes against humanity and without reference to a nexus to

armed conflict.306

The Resolution’s preamble notes that genocide ‘shocked the

conscience of mankind [and] resulted in great losses to humanity in the form of

cultural and other contributions represented by these groups.’ The phrase recalls the

humanitarian law origins of the proposed convention and the rationale propagated by

Lemkin. It was a sentiment contained in the preamble of the 1954 Hague Convention.

However, the resolution went on to define genocide narrowly as ‘a denial of the right

to existence of entire human groups, as homicide is the denial of the right to live for

individual human beings.’

Following a direction from the Economic and Social Council, the Secretary-

General requested the Division of Human Rights prepared a draft Convention on the

Prevention and Punishment of Genocide. The Secretariat draft categorized acts

constituting genocide in three parts: physical, biological, and cultural.307

Acts that fell

within the cultural element of its definition included those designed to destroy the

characteristics of the group including the forced removal of children to another group,

systematic and forced exile of representatives of the targeted group, complete

prohibition on the use of its language, systematic destruction of books in the language

304 See Justice Trial (Josef Altostötter and others) (U.S. Military Tribunal), 4 LRTWC (1946) 48

stated that: ‘The General Assembly is not an international legislature, but it is the most authoritative

organ in existence for the interpretation of world opinion. Its recognition as an international crime is

persuasive evidence of the fact’; and Reservations to the Convention on the Prevention and Punishment

of the Crime of Genocide Case, ICJ Reports 1951, 15, at 23, and Barcelona Traction, Light and Power

Co case (Belgium v. Spain), ICJ Reports 1970, 3 at 32.

305 Ibid., at 23.

306 Paragraph 1, GA Res.96(I). The range of groups covered by the Genocide Resolution – ‘racial,

religious, political and other groups’ – reflects the list contained in Article 6(c) of the London Charter

except that that list was exhaustive. The initial draft of the Resolution was narrower and referred to

‘national, racial, ethnical or religious groups’, which is closer to the definition contained in Article II

Genocide Convention: UN Doc.A/BUR/50.

307 Committee on the Progressive Development of International Law and its Codification, Draft

Convention for the Prevention and Punishment of Genocide, prepared by the Secretariat, 6 June 1947,

UN Doc.A/AC.10/42 (Secretariat draft).


61

or those related to its religious practices, and ‘systematic destruction of historical or

religious monuments or their diversion to alien uses, or destruction or dispersion of

documents or objects of historical, artistic, or religious interest and of religious

accessories.’308

Of the legal experts consulted by the Secretariat, only Lemkin supported the

inclusion of ‘cultural genocide.’ He argued a group’s right to exist was justified

morally but also because of ‘the value of the contribution made by such a group to

civilization generally.’ He reiterated: ‘If the diversity of cultures were destroyed, it

would be as disastrous for civilization as the physical destruction of nations.’309

The

other legal experts, Donnedieu de Vabres and Vespasian V. Pella maintained that

these cultural elements ‘represented an undue extension of the notion of genocide and

amounted to reconstituting the former protection of minorities (which has been based

on other conceptions) under the cover of the term of genocide.’310

The division

between the proponents and opponents of the inclusion of cultural elements in the

definition of genocide were sustained as the draft convention progressed through

various stages in the UN system.311

308 Draft Article 3(e), UN Doc.A/AC.10/42 at 3.

309 See UN Doc.E/447, 27; and Contribution of the Convention on the Prevention and

Punishment of the Crime of Genocide to the Prevention of Discrimination and the Protection of

Minorities, December 7, 1949, UN Doc.E/CN4/Sub.2/80, para.22.

310 Ibid.

311 Ad Hoc Committee on Genocide, Report of the Committee and Draft Convention drawn up by

the Committee, K. Azkoul, Rapporteur, 24 May 1948, UN Doc.E/794, 17: agreed to retain ‘cultural

genocide’ but as a separate provision which was narrowly defined. Article III encompassed ‘any

deliberate act committed with the intent to destroy the language, religion, or culture of a national, racial

or religious group’. It referred specifically to the prohibition on the use of language of the group; and

the destruction, or prevention of the use of libraries, museums, schools, historic monuments, places of

worship or other cultural institutions and objects of the group. Article III was adopted 4-0-3. The

United States condemned its inclusion declaring such acts were more appropriately dealt with under the

protection of minorities: UN Doc.E/794, 18. Next, the discussion in the Sixth (Legal) Committee was

confined simply to the question of whether the Convention should include cultural genocide. The

Committee voted against the inclusion of the provision relating to cultural genocide (25-16-4): UN

Doc.A/C.6/SR.83 at item 30, at 206; and Daes, ‘Protection of Minorities under the International Bill of

Human Rights and the Genocide Convention’, in Xenion: Festschrift für Pan J Zepos anlasslich seines

65, II, (1973), 35 at 69. Its inclusion was not effectively revived thereafter. In the Economic and

Social Council: ECOSOC, UN Doc.E/SR.218 and 219; and J. Spiropolous, Genocide: Draft

Convention and Report of the Economic and Social Council, Report of the Sixth Committee, December

3, 1948, UN Doc.A/760; and finally, the General Assembly: UN Doc.A/PV.178 and 179 (with the

USSR effort to reintroduce a new Article III being defeated 14-31-10).


62

The Genocide Convention was adopted by the General Assembly on 9

December 1948. The only element of the cultural component contained in the

Secretariat’s definition of genocide that remains in final text is the reference to the

removal of children from the group.312

As noted above, this provision ties in with

protections included in the 1949 Geneva Conventions. Like the Genocide Resolution,

the Genocide Convention defines genocide as a crime under international law

independently of crimes against humanity and specifically affirms that it can be

‘committed in time of peace or in time of war.’ Freed of these strictures, the

convention has been viewed as an important instrument for safeguarding human rights

norms.

Despite successive opportunities to extend the definition of genocide to

include acts which cover those eliminate cultural elements of the original draft – the

international community has consistently refused to do so. The parameters demarcated

by Article II of the Convention have been reaffirmed repeatedly by the international

community and international courts.313

2. ICTY and individual criminal responsibility for genocide

Following the 1948 Genocide Convention, Article 4 the ICTY Statute contains

the same definition of genocide as Article II and does not require that the acts occur

during an armed conflict to constitute the crime of genocide. The acts must have been

perpetrated with a specific intent or dolus specialis, that is, with the intent ‘to destroy,

in whole or in part, a national, ethnic, racial or religious group as such…’.314

The ICTY has emphasized that there are two elements to the special intent

requirement of the crime of genocide: (i) the act or acts must target a national,

ethnical, racial or religious group;315

and (ii) the act or acts must seek to destroy all or

part of that group. It has found that the travaux préparatoires of the Genocide

Convention highlight that the list of groups contained in Article II ‘was designed more

312 Article 2(e), Genocide Convention.

313 See Art.2, ICTR Statute; Art.6, Rome Statute; Art.9, Statute of the Special Court for

Cambodia; and Art.4, Law on the Establishment of Cambodian Extraordinary Chambers.


315 Ibid., at paras.551-553.


63

to describe a single phenomenon, roughly corresponding to what was recognised,

before the second world war, as “national minorities”, rather than to refer to several

distinct prototypes of human groups.’316

Furthermore, the Trial Chamber emphasised

that it was not individual members of the group that were to be targeted but the group

itself.317

In the case of Radoslav Krstić, where the defendant was charged with

atrocities related to the fall of Srebrenica in mid-1995, the ICTY Trial Chamber took

the opportunity to re-examine the question of whether acts directed at the cultural

aspects of a group constituted genocide as a crime in international law. It noted that:

The physical destruction of a group is the most obvious method, but one may also

conceive of destroying a group through purposeful eradication of its culture and

identity resulting in the eventual extinction of the group as an entity distinct from

the remainder of the community.318

The tribunal observed that, unlike genocide, persecution was not limited to the

physical or biological destruction of a group but extended to include ‘all acts designed

to destroy the social and/or cultural bases of a group.’319

The tribunal noted that some

recent declarations and case law interpreted the ‘intent to destroy clause in Article 4’

as relating to acts that involved cultural forms of destruction of the group.320

Nonetheless, the tribunal found that the drafters of the Genocide Convention

expressly considered and rejected the inclusion of the cultural elements in the list of

acts constituting genocide.321

Indeed, it observed that despite numerous opportunities

to recalibrate the definition of genocide, Article II of the Convention was replicated in

the statutes of the two ad hoc tribunals for the former Yugoslavia and Rwanda, the

1996 Draft ILC Code of Crimes Against Peace and Security of Mankind,322

and the

316 Ibid., at para.556. Cf. Crimes against humanity of persecution also includes political groups.

317 Ibid., at paras.551-553.



320 Including GA Res.47/121, 18 December 1992 defining ethnic cleansing as ‘genocide’.


322 Art.17, Draft Code of Crimes Against the Peace and Security of Mankind, 51 UN GAOR

Supp. (No. 10) at 14, UN Doc. A/CN.4/L.532, corr.1, corr.3 (1996). During the 1951 session, Jean

Spiropoulos prepared a revised draft code (UN Doc.A/CN.4/44) added the word ‘including’ at the end


64

Rome Statute for the establishment of the International Criminal Court.323

The Trial

Chamber in Krstić found these developments had not altered the definition of

genocidal acts in customary international law and felt confined by the principle of

nullum crime sine lege. The Appeals Chamber in Krstić confirmed that the Genocide

Convention and customary international law limited genocide to the physical or

biological destruction of the group, noting with approval that ‘the Trial Chamber

expressly acknowledged this limitation, and eschewed any broader definition.’324

Nonetheless, the Trial Chamber in the Krstić case used evidence of the

destruction of mosques and the houses of Bosnian Muslims to prove the mens rea or

the specific intent element of genocide. The Trial Chamber found that:

[A]n enterprise attacking only the cultural or sociological characteristics of a

human group in order to annihilate these elements which give to that group its own

identity distinct from the rest of the community would not fall under the definition

of genocide.… [H]owever… where there is physical or biological destruction there

are often simultaneous attacks on cultural and religious property and symbols of

the targeted group as well, attacks which may legitimately be considered as

evidence of an intent to physically destroy the group.325

Judge Mohamed Shahabuddeen in the Appeals Chamber developed this reasoning

further. In his partial dissenting decision, he argued that the travaux did not exclude

of the chapeau of the definition prior to the enumeration of the acts of genocide: 2 YbILC, (1951), at

136. Article II of the Genocide Convention was deliberately an exhaustive list of acts: UN

Doc.A/C.6/SR.81. At the 1989 session, the ILC noted that Special Rapporteur Doudou Thiam’s

definition of genocide which also included this wording was favourably received ‘because unlike that

in the 1948 Genocide Convention, the enumeration of acts constituting the crime of genocide proposed

by the Special Rapporteur was not exhaustive.’ Report of the ILC on the Work of Its Forty-First

Session, GAOR, 41st session, Supp. No.10, UN Doc.A/44/10, (1989) at 59, para.159. The final draft

however effectively reproduced the definition of acts contained in Article II, Genocide Convention.

323 The ILC, when drafting a code of crimes which it submitted to the ICC Preparatory

Committee, concluded: “As clearly shown by the preparatory work of the Convention, the destruction

in question is the material destruction of a group either by physical or by biological means, not the

destruction of the national, linguistic, cultural or other identity of a particular group.” Report of the ILC

on the Work of its Forty-Eighth Session, GAOR, 51st session, Supp. No.10 UN Doc.A/51/10, (1996),

90-91. No suggestion to expand the list of acts contained in Article 2 of the Genocide Convention was

raised during the deliberations for the Rome Statute.

324 Prosecutor v. Radislav Krstić, Appeals Judgment, Case No.IT-98-33-A, (19 April 2004),

para.25.



65

‘an intent to destroy a group in a non-physical or non-biological way … provided that

that intent is attached to a listed act, this being of a physical or biological nature.’326

It is sobering to recount the words of the prosecution in the Krstić Trial

Chamber detailing the impact of the atrocities on the Srebrenica survivors: ‘[W]hat

remains of the Srebrenica community survives in many cases only in the biological

sense, nothing more. …[I]t’s a community that’s a shadow of what it once was.’327

Judge Shahabuddeen observed that the Genocide Convention protected the group

which ‘is constituted by characteristics — often intangible — binding together a

collection of people as a social unit.’ He argued that if these characteristics are

destroyed with an intent that is accompanied by an enumerated ‘biological’ or

physical’ act, it is not sustainable to argue that ‘is not genocide because the

obliteration was not physical or biological.’328

The Appeal Chamber pronounced that

genocide was ‘crime against all humankind’ because ‘those who devise and

implement genocide seek to deprive humanity of the manifold richness its

nationalities, races, ethnicities and religions provide.’329

Krstić was found guilty of genocide (and the crime of humanity of persecution

and violation of the laws and customs of war) and was sentenced to forty six years

imprisonment by the Trial Chamber. The Appeal Chamber reduced this sentence to

thirty-five years when it found that he had aided and abetted these crimes rather than

being a participant in a joint criminal enterprise.

3. ICJ Genocide case and state responsibility for genocide

The Genocide case filed by Bosnia and Herzegovina against Yugoslavia (later

Serbia and Montenegro) with the International Court of Justice in 1993 was an action

for interim measures and reparations for Yugoslavia’s violations of obligations under

the 1948 Genocide Convention to which it was a state party. Unlike the actions before

326 Krstić, Appeals Judgment, dissenting judgment of Judge Mohamed Shahabuddeen, at para.50.


328 Krstić, Appeals Judgment, dissenting judgment of Judge Mohamed Shahabuddeen, at para.51.

329 Krstić, Appeals Judgment, para.36. It reaffirmed this sentiment again in Prosecutor v. Milomir

Stakić, Appeals Judgment, Case No.IT-97-24-A, Appeals Chamber ICTY, (22 March 2006), paras.20-

24.


66

the ICTY concerning individual criminal responsibility, the action went to the

‘criminal’ culpability of a state in respect of the international crime of genocide.

In its submission during the Merits phase, the applicant, Bosnia and

Herzegovina presented only two witnesses to the Court. One of which was the expert

testimony of András J. Riedlmayer in respect of the destruction of cultural, religious

and architectural heritage of Bosnia and Herzegovina.330

Riedlmayer had previously

given evidence before the ICTY in the Milošević case.331

His evidence was used to

prove the specific intent element of genocide, which distinguishes it from other

international crimes especially those enumerated under crimes against humanity. The

deployment of such evidence in this way reaffirmed an observation made by Lemkin

more than a half-century ago, that the destruction of the cultural elements of a group

is intimately tied to genocidal programs and often preceded the final – biological and

physical – stage.

Accepting that there was ‘conclusive evidence of the deliberate destruction of

the historical, cultural and religious heritage of the protected group’,332

the ICJ, like

the ICTY before it, turned its mind to the definition of genocide and the place if any

of the cultural elements within it. It found that:

[T]he destruction of historical, cultural and religious heritage cannot be

considered to constitute the deliberate infliction of conditions of life calculated to

bring about the physical destruction of the group. Although such destruction may

be highly significant inasmuch as it is directed to the elimination of all traces of

the cultural or religious presence of a group, and contrary to other legal norms, it

does not fall within the categories of acts of genocide set out in Article II of the

Convention.333

330 In the case concerning the Application of the Convention on the Prevention and Punishment of

the Crime of Genocide, CR 2006/22 Public sitting held on Friday 17 March 2006, at 10 a.m., at the

Peace Palace, President Higgins presiding - Oral arguments on behalf of Bosnia and Herzegovina:

András J. Riedlmayer (expert called by Bosnia and Herzegovina), at <http://www.icj-

cij.org/docket/files/91/10628.pdf> (viewed on 24 March 2009).

331 Prosecutor v. Slobodan Milošević, Trial Proceedings, Case No.IT-02-54, Trial Chamber,

ICTY, (8 July 2003), at 23,785 (Reidlmayer).

332 ICJ Genocide case, para.344. See also paras.335-344 generally.

333 ICJ Genocide case, paras.191-201, especially para.194.


67

The International Court embraced the ICTY’s interpretation in Krstić that the

definition of genocide had not evolved to include the cultural elements discarded in

1948. It reaffirmed the ICTY’s position that the destruction of the historical, religious

and cultural heritage of a group only goes to proving the mens rea of the crime of

genocide and not the actus reus.334

The ICJ also affirmed the decision of the ICTY Appeals Chamber in Stakić

delivered in 2006 which determined that the Convention requires that the targeted

group be positively defined. Again, the International Court invoked the rejection of

the cultural genocide during the drafting of the convention in support of its

position.335

By contrast, the ICTY Appeals Chamber did not dismiss the debate

concerning the cultural elements of genocide. Instead, the tribunal recalled that

Lemkin had argued that genocide was a serious crime because humanity lost the

‘“future contributions” that would be “based upon [the destroyed group’s] genuine

culture, and … well-developed national psychology”.’336

It concluded that genocide

was ‘conceived of as the destruction of a … group with a particular positive identity –

not as the destruction of various people lacking a distinct identity.’337

The tribunal

conceded that debate over the prohibition of cultural genocide has continued among

experts even after the Convention was adopted.338

As noted above, the original Secretariat draft of the Genocide Convention

made reference to the targeting of the cultural heritage of a group including its

cultural and religious sites, documents, practices and language. This ‘cultural’

component of the definition was deleted because of post-war resistance to the

resuscitation of minority protections. However, it was no coincidence that the revival

of efforts to draft and finalise an instrument on the protection of minorities in the

1990s was accompanied by increased jurisprudence on the crime of genocide. This

litigation before international courts has not only revisited the debate concerning

‘cultural’ genocide. It has again exposed the internal inconsistency within the

334 ICJ Genocide case, para.344.

335 ICJ Genocide case, para.194.

336 Stakić, Appeals Judgment, para.21.

337 Ibid.

338 Stakić, Appeals Judgment, para.24.


68

Genocide Convention’s definition of this international crime rendered by the deletion

of those ‘cultural’ elements from Article II. That is, a group must have a distinct

identity to attract the protection afforded by the convention but acts which target their

cultural heritage (and which render the group distinctive) are not prohibited per se.

Confining such acts to establishing the mens reas of genocide alone, serves only to

highlight this inconsistency rather than remedy it.

Nevertheless, the evolution of international criminal law from war crimes to

include crimes against humanity (including persecution) and genocide has

encapsulated the shifting rationale for the protection of cultural heritage at the

international level.

5. Concluding remarks

Whilst international humanitarian law was the first field in international law to

bestowed exceptional treatment upon cultural heritage, in the last twenty years there

has been a recapitulation of the interplay between international humanitarian law,

human rights law and international criminal law in promoting its underlying rationale

for protection: its importance to all humanity. As I have detailed in this chapter, with

the rise of human rights from the mid-twentieth century, this rationale has undergone

a significant recalibration. It was originally based on its importance for the

advancement of the arts and sciences, and knowledge generally. This has now been

eclipsed by an emphasis on the significance of cultural heritage in ensuring the

contribution of all peoples to humankind. In conclusion, I wish to underscore three

normative trends which consolidate this rationale and the internal shift that it has

undergone.

First, the obligation to protection cultural heritage is not confined to states

parties to the relevant human rights, humanitarian law nor specialist cultural heritage

instruments but extends to all states. This development intrinsically arises from the

notion that if the protection of cultural heritage at the international level is grounded

in its importance to all humanity, and this is a ‘value especially protected by the

international community’,339

then all states have ‘a legal interest in [its] protection.’340

339 Jokić, Trial Judgment, para.46. See also 1932 ICIC Resolution, supra note 145.


69

Its nascent form is reflected in the 1972 World Heritage Convention and near

universal uptake.341

However, an early clear example of this type of obligation was

contained in the 1943 London Declaration. It formally put persons on notice in neutral

countries that transfer of property from territories occupied by Axis forces would be

declared invalid by the Allied Powers.342

More recently, as noted above, the

obligations contained in the 1954 Hague Protocol were extended beyond states parties

when they were summarily incorporated into SC Res.1483 of 2003. This resolution

bound all UN member states to ‘facilitate the safe return’ and prohibit trade in cultural

heritage illicitly removed from Iraq since August 1990.343

In 2003 and 2007, the

UNESCO General Conference and the Human Rights Council respectively confirmed

that all states may bear responsibility in respect of intentional destruction of cultural

heritage ‘of great importance for humanity, to the extent provided for by international

law.’344

Next, the progressive dissolution of the boundaries between protection of

cultural heritage during armed conflict, belligerent occupation and peacetime is

redefining the content of the obligation.345

This was highlighted in the aftermath of

the destruction of the monumental Buddhas in Bamiyan, Afghanistan, with the

adoption of the 2003 UNESCO Declaration on the Intentional Destruction of Cultural

340 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996) 226,

at 257; and Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory,

Advisory Opinion, ICJ Reports (2004) 136, at 199 (in respect of obligations erga omnes generally).

341 Convention concerning the Protection of the World Cultural and Natural Heritage, 16

November 1972, in force 17 December 1975, 1037 UNTS 151. As at September 2009, there were 186

states parties to the Convention and 192 UN member states. See Francioni, ‘Introduction’, in F.

Francioni and F. Lenzerini (eds) The 1972 World Heritage Convention: A Commentary, (2008), p.5. Cf.

O’Keefe, ‘World Cultural Heritage: Obligations to the International Community as a Whole?’ 53 ICLQ

(2004) 189.

342 See also Agreement between the United States, the United Kingdom and France in respect of

the Control of Looted Works of Art, 8 July 1946, 25 Department of State Bulletin (1951) 340, Swiss

Decree of 10 December 1945 concerning Actions for the Recovery of Goods taken in Occupied

Territories during the War, and Swedish Looted Objects Law of 29 June 1945.

343 SC Res.1468, para.7 (14-0-0), the United States and United Kingdom who are not states

parties to the 1954 Hague Protocol voted in favour.

344 Part VI of the Declaration concerning the International Destruction of Cultural Heritage,

adopted by the 32nd session of the UNESCO General Conference on 17 October 2003, in UNESCO,

Records of the General Conference, 32nd session, Paris, 29 September to 17 October 2003, (2004) v.1;

and HRC Res.6/11, 28 September 2007, Protection of cultural heritage as an important component of

the promotion and protection of cultural rights, paragraph 5.

345 Article III, paragraph 1, Declaration on Intentional Destruction.


70

Heritage.346

Like the 1935 Washington Treaty and jurisprudence of the ICTY, the

declaration marries references to war and peacetime protection. It provides that all

states should act in accordance with customary international law and the ‘principles

and objectives’ of international agreements and UNESCO recommendations during

hostilities and peacetime.347

It replicates the tradition of multilateral efforts covering

cultural heritage dating back to the early twentieth century which meld preventative,

protective and punitive measures borne by states, foster international cooperation and

strictly circumscribe the military objective proviso.

The customary international law prohibition against the international

destruction of cultural heritage during peacetime is less clearly defined than during

armed conflict and belligerent occupation. However, support can be gleaned not only

from pronouncements by United Nations’ bodies, like the Human Rights Council,348

but the elevated uptake of relevant treaties over the past decade.349

Further, protection

provided by international law during peacetime to cultural heritage of universal

importance should necessarily be greater than that provided during armed conflict to

which the military necessity proviso is attached.350

Also, as explained above,

international criminal law prohibits international destruction during peacetime when it

targets cultural heritage because of its affiliation to certain groups.

Thirdly, and complementing this trend, is the growing convergence between

human rights and humanitarian law in the field of cultural heritage (and cultural

rights).351

This has been enhanced by the embrace of a holistic understanding of

346 See Francioni and Lenzerini, ‘The Destruction of the Buddhas of Bamiyan and International

Law’ 14 EJIL (2003) 619; and Vrdoljak, ‘International Destruction of Cultural Heritage and

International Law’, XXXV Thesaurus Acroasium (2007) 377-396.

347 Articles IV and V, Declaration on Intentional Destruction.

348 HRC Res.6/11, 28 September 2007, seventh, eighth and ninth preambular recitals and paras.4

and 5.

349 In addition to the 1972 World Heritage Convention, see Convention on the Means of

Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property,

14 November 1970, in force 24 April 1972, 823 UNTS 231. As at September 2009, the convention had

118 states parties.

350 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996),

paras.23-34 (the reasoning employed by the International Court to environmental protections can be

applied similarly to those covering cultural heritage).

351 Fifth preambular recital and Article IX, UNESCO Declaration on Intentional Destruction; and

HRC Res.6/1, 27 September 2007 entitled Protection of cultural rights and property in situations of

armed conflict.


71

cultural heritage through instruments for the protection of intangible heritage and

endangered languages,352

and the promotion of cultural diversity.353

Complementing

the evolution of international criminal law, these developments have arisen with the

emergence of human rights and the re-emergence of minority protection.354

Traditionally, the prosecution of crimes against humanity, in particular persecution,

and genocide has almost exclusively relied on evidence of the damage or destruction

of the physical manifestations of a targeted group’s cultural heritage. However, as

detailed above, the United Nations’ War Crimes Commission in 1945 when

interpreting existing humanitarian law provisions for the protection of tangible

heritage extrapolated them to include its intangible aspects. Also, the definition of

genocide contained in Secretariat’s draft Convention incorporated tangible and

intangible cultural elements. Understanding and acceptance of the need for protection

of intangible heritage, including language, augments efforts to prevent and punish the

crimes of humanity and genocide and promote human rights.

While cultural heritage has attracted protection since the earliest codifications

of the laws of war in the nineteenth century, it was not until the mid-twentieth century

that the rationale for its protection which is promoted today was formally articulated.

The crimes the subject of the Nuremberg Judgment precipitated the adopted of the

UDHR, the Genocide Convention and 1954 Hague Convention. Each of these

instruments implicitly or explicitly reaffirms the special protection afforded cultural

heritage because of its importance to all humanity. This protection is not provided to

cultural heritage per se. Rather, it is because of its role in ensuring enjoyment of

human rights and the contribution of all peoples to ‘the culture of the world’.355

Half a

century later, the crimes the subject of the ICTY’s jurisprudence have served to alert

the international community that such atrocities are not confined to the distant past

352 Intangible Heritage Convention, supra note 207, as at 1 October 2009, there were 116 states

parties to this convention; European Charter for Regional or Minority Languages, 5 November 1992, in

force 1 March 1998, ETS No.148; and Preliminary Study of the Technical and Legal Aspects of a

Possible International Standard-Setting Instrument for the Protection of Indigenous and Endangered

Languages, 17 August 2009, UNESCO Doc.35C/14.

353 Universal Declaration on Cultural Diversity, supra note 207.

354 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and

Linguistic Minorities, supra note 208; and Framework Convention for the Protection of National

Minorities, 1 February 1995, in force 1 February 1995, ETS No.157.

355 Second preambular recital, 1954 Hague Convention.


72

and thereby, precipitated a recommitment to this underlying rationale through a

further consolidation of the protection afforded cultural heritage by international

humanitarian law, human rights and international criminal law.

Cultural Heritage in Human Rights and Humanitarian...

Documents

Transcript of Cultural Heritage in Human Rights and Humanitarian...